Divorce

By: Khalid Iqbal, founder Rahmaa Institute

It is sad to see the divorce rate among Muslims is rising in US and around the world. It is the most despised and disliked act that is allowed in Islam. For the benefit of our readers we want to write a simple article defining and explaining some divorce terminology used in North America along with the divorce procedures.

Divorce
Divorce (or the dissolution of marriage) in legal terms is the termination of a marital union, the canceling and/or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country and/or state.

Annulment
Annulment is declaration that the marriage is null and void; with legal separation (a legal process by which a married couple may formalize a de facto separation while remaining legally married) or with de facto separation (a process where the spouses informally stop cohabiting). An annulment is a court decision that your marriage is not valid. You can only get an annulment in certain situations. Reasons for annulment may be:
• Bigamy
• Incompetence
• You or your spouse were too young for marriage
• You and your spouse are close relatives
• Your spouse used force or fraud to get your agreement to marry
• You were forced into marriage by others

Divorce laws
Divorce laws vary considerably around the world, but in most countries it requires the sanction of a court or other authority in a legal process. The legal process of divorce may also involve issues of
• Alimony (spousal support),
• Child custody,
• Child visitation / access, parenting time,
• Child support,
• Distribution of property, and
• Division of debt.

Overview
Divorce grounds vary significantly from state to state and country to country. Marriage in Islam is seen as a contract (The same is seen in the Western countries), as such, the refusal or inability of one spouse to perform the obligations stipulated in the contract may constitute a ground for divorce for the other spouse. Yet, in some countries, (such as Sweden, Finland, Australia, New Zealand) divorce is purely no fault. Many jurisdictions offer both the option of a no fault divorce as well as an at fault divorce. This is the case in many US states.
Though divorce laws vary between jurisdictions, there are two basic approaches to divorce:
1. Fault based, and
2. No-fault based.
However, even in some jurisdictions that do not require a party to claim fault of their partner, a court may still take into account the behavior of the parties when dividing property, debts, evaluating custody, shared care arrangements and support. In some jurisdictions one spouse may be forced to pay the attorney’s fees of another spouse.
Waiting Period
Laws vary as to the waiting period before a divorce is effective. In most states the courts order the couple to wait for 6 months if there are no children, or one year in case of children giving them time to reconsider and try reconciliation. Sometimes court may order the couple to seek marriage counseling or anger management course if anger is an issue in the marriage.
In Europe divorce laws differ from country to country, reflecting differing legal and cultural traditions.

Residency Requirement and Division of property
Residency requirements vary based on the state and local laws. However, issues of division of property in contested divorces are typically determined by the law of the jurisdiction in which the property is located.

Types of Divorce from Legal Perspective
In most jurisdictions, a divorce must be certified (or ordered by a Judge) by a court of law to come into effect. The terms of the divorce are usually determined by the courts, though they may take into account prenuptial agreements or post-nuptial agreements, or simply ratify terms that the spouses may have agreed to privately (this is not true in the United States, where agreements related to the marriage typically have to be rendered in writing to be enforceable). In absence of agreement, a contested divorce may be stressful to the spouses.

Contested divorce
Contested divorces mean that one of several issues are required to be heard by a judge at trial level—this is more expensive, and the parties will have to pay for a lawyer’s time and preparation. In such a divorce the spouses are not able to agree on issues for instance child custody and division of marital assets. In such situations, the litigation process takes longer to conclude. The judge controls the outcome of the case.
Alternate Divorce Settlements
Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce settlement, which negotiate mutually acceptable resolution to conflicts. This principle in the United States is called ‘Alternative Dispute Resolution’ and has gained popularity.

At-fault divorce
Before the late 1960s, nearly all countries that permitted divorce required proof by one party that the other party had committed an act incompatible to the marriage. This was termed “grounds” for divorce (popularly called “fault”) and was the only way to terminate a marriage. Most jurisdictions around the world still require such proof of fault. In the United States, no-fault divorce is available in all 50 states, as is the case with Australia, New Zealand, Canada and other Western countries.

Fault-based divorces can be contested; evaluation of offenses may involve allegations of collusion of the parties (working together to get the divorce), or condonation (approving the offense), connivance (tricking someone into committing an offense), or provocation by the other party. Contested fault divorces can be expensive, and not usually practical as eventually most divorces are granted. Comparative rectitude is a doctrine used to determine which spouse is more at fault when both spouses are guilty of breaches.

The grounds for a divorce which a party could raise and need to prove included ‘desertion,’ ‘abandonment,’ ‘cruelty,’ or ‘adultery.’ The requirement of proving a ground was revised (and withdrawn) by the terms of ‘no-fault’ statutes, which became popular in many Western countries in the late 1960s and early 1970s. In ‘no-fault’ jurisdictions divorce can be obtained either on a simple allegation of ‘irreconcilable differences,’ ‘irretrievable break-down’, or ‘incompatibility’ with respect to the marriage relationship, or on the ground of de facto separation.

Summary divorce
A summary (or simple) divorce, available in some jurisdictions, is used when spouses meet certain eligibility requirements, or can agree on key issues beforehand.

Key factors:

No-fault divorce
Some Western jurisdictions have a no-fault divorce system, which requires no allegation or proof of fault of either party. The barest of assertions suffice. For example, in countries that require “irretrievable breakdown”, the mere assertion that the marriage has broken down will satisfy the judicial officer. In other jurisdictions requiring irreconcilable differences, the mere allegation that the marriage has been irreparable by these differences is enough for granting a divorce. Courts will not inquire into facts. A “yes” is enough, even if the other party vehemently says “no”.
The application can be made by either party or by both parties jointly.
In jurisdictions adopting the ‘no-fault’ principle in divorce proceedings, some courts may still take into account the behavior of the parties when dividing property, debts, evaluating custody, and support—facts that almost always have considerable weight in fault proceedings.[citation needed] In custody cases, courts might consider factors that may appear like ‘fault’ based issues but are really related to protection of the child or children. These may include but are not limited to one or both parent’s substance abuse, history of violence, cruelty, instability, neglect or endangerment.

Short marriage (less than 5 years)
No children (or, in some states, when the spouses have resolved custody and set child support payments for children of the marriage)
Minimal or no real property (no mortgage)
Marital property is under a threshold (around $35,000 not including vehicles)
Each spouse’s personal property is under a threshold (typically the same as marital property)

Uncontested divorce
It is estimated that upwards of 95% of divorces in the U.S. are “uncontested”, because the two parties are able to come to an agreement (either with or without lawyers/mediators/collaborative counsel) about the property, children, and support issues. When the parties can agree and present the court with a fair and equitable agreement, approval of the divorce is almost guaranteed. If the two parties cannot come to an agreement, they may ask the court to decide how to split property and deal with the custody of their children. Though this may be necessary, the courts would prefer parties come to an agreement prior to entering court.
Where the issues are not complex and the parties are cooperative, a settlement often can be directly negotiated between the divorcing couple. In the majority of cases, forms are acquired from their respective state websites and a filing fee is paid to the state. Most U.S. states charge between $175 and $350 for a simple divorce filing. Collaborative divorce and mediated divorce are considered uncontested divorces.
Because of additional requirements that must be met, most military divorces are typically uncontested.

Collaborative divorce
Collaborative divorce is a method for divorcing couples to come to agreement on divorce issues. In a collaborative divorce, the parties negotiate an agreed resolution with the assistance of attorneys who are trained in the collaborative divorce process and in mediation, and often with the assistance of a neutral financial specialist and/or divorce coach(es). The parties are empowered to make their own decisions based on their own needs and interests, but with complete information and full professional support.

Once the collaborative divorce starts, the lawyers are disqualified from representing the parties in a contested legal proceeding, should the collaborative law process end prematurely. Most attorneys who practice collaborative divorce claim that it can be more cost-effective than other divorce methods, e.g., going to court.[34] Expense, they say, has to be looked at under the headings of financial and emotional. Also, the experience of working collaboratively tends to improve communication between the parties, particularly when collaborative coaches are involved, and the possibility of going back to court post-separation or divorce is minimized. In the course of the collaboration, should the parties not reach any agreements, any documents or information exchanged during the collaborative process cannot be used in court except by agreement between the parties.

Neither can any of the professional team retained in the course of the collaboration be brought to court. Essentially, they have the same protections as in mediation. There are two exceptions: 1) Any affidavit sworn in the course of the collaboration and vouching documentation attaching to same and 2) any interim agreement made and signed off in the course of the collaboration or correspondence relating thereto. The parties are in control of the time they are prepared to give their collaboration. Some people need a lot of time to complete, whereas others will reach solutions in a few meetings. Collaborative practitioners offer a tightly orchestrated model with meetings scheduled in advance every two weeks, and the range of items to be discussed apportioned in advance of signing up as well as the more open ended process, the clients decide.

Mediated divorce
Divorce mediation is an alternative to traditional divorce litigation. In a divorce mediation session, a mediator facilitates the discussion between the two parties by assisting with communication and providing information and suggestions to help resolve differences. At the end of the mediation process, the separating parties have typically developed a tailored divorce agreement that can be submitted to the court. Mediation sessions can include either party’s attorneys, a neutral attorney, or an attorney-mediator who can inform both parties of their legal rights, but does not provide advice to either, or can be conducted with the assistance of a facilitative or transformative mediator without attorneys present at all. Some mediation companies, also pair clients with counselors, financial planners and other professionals to work through common mediation sticking points. Divorce mediators may be attorneys who have experience in divorce cases, or they may be professional mediators who are not attorneys, but who have training specifically in the area of family court matters. Divorce mediation can be significantly less costly, both financially and emotionally, than litigation. The adherence rate to mediated agreements is much higher than that of adherence to court orders.
Mediation can be helpful when the parties have equal power. Both parties must be able to say what they want, without being afraid or pressured.
Threats and control are common in relationships where one person is abusive. If the abuser is used to being in charge and making all the decisions, mediation probably won’t work well.
Mediation may be even more of a problem if the other party abused you and you don’t have a lawyer. If you need a lawyer and are low-income, you may qualify for free legal help. You should try to find a social services organization in your area that may be able to help you find a lawyer who may be willing to take your case pro bono (Free of charge)

Arbitration
Arbitration is an alternative to trial when the parties can’t reach an agreement on their divorce issues. Arbitration is different from mediation because the arbitrator’s decisions are binding. The arbitrator will make decisions and issue orders that are enforceable, just as a court would.
You can’t be ordered to participate in arbitration. The court will only send your case to arbitration if you and your spouse agree to it on the record.

The Friend of the Court (FOC)
The Friend of the Court (FOC) is part of the family division of the circuit court in each county. The FOC helps the court in cases involving custody, parenting time, and child support. Some of the duties the FOC performs are:

• Investigating and issuing recommendations about custody, parenting time, and child support;
• Helping the parties settle disputes during and after their case;
• Providing enforcement services on existing custody, parenting time, and support orders; and
• Some FOC offices (but not all) investigate and issue recommendations about spousal support.

Can the Friend of the Court make decisions in my case?
No. Although the court will consider Friend of the Court (FOC)recommendations, it is not bound by them. You may also be able to “opt out” of FOC services in your case if both parents agree to opt out.

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