No-Fault Divorce or “Irreconcilable Differences”
The vast majority of divorces are resolved at the outset, when husband and wife sit down at the kitchen table and write out the bullet points of what they want their divorce to look like: who gets what, who will pay what, how they’re going to share the responsibilities of and time with their children. Then they take that agreement/outline to a lawyer to draw up the papers and make their agreement “legal.” We’ve seen estimates that at least 80 percent of divorces start and end that way.
When that happens, part of the paperwork that the lawyer drafts is the agreement to an irreconcilable differences divorce. Charting the division of assets and resolution of children’s issues might be complicated, even if the parties ostensibly have an agreement, but there’s nothing at all complicated about an irreconcilable differences divorce when both parties agree to it.
A word of caution: Don’t order the online divorce papers and try to draft your legal documents yourself. The forms are a little complicated, and many if not most people who go this route mess up the forms because they’re not easy.
Sure, you’ll save money at the time of divorce (if you manage to get the forms right). But you will lose money getting a lawyer to straighten out the mess — as you surely will do the first time that you and your ex get into any disagreement. We cannot count how many times that we’ve had to tell clients that their divorce papers didn't say what they thought they said. Or worse, that the papers said something that they didn’t realize. Lawyers make far more money fixing “messed-up papers” than they do handling the divorce the right way from the start.
You don’t try to fix your car’s transmission. You don’t try to fix the faulty wiring in your house
(we hope). Get a professional to handle your divorce the right way.
“In every marriage more than a week old, there are grounds for divorce. The trick is to find and continue to find grounds for marriage.”
HOW A NO-FAULT DIVORCE WORKS
We won’t advise you on what arrangements you want to make with your spouse on the subject of what the two of you want your divorce to look like. Our experience is that just because people are divorcing, that doesn’t necessarily mean that they distrust each other. Particularly if you don’t trust your spouse to be on the up-and-up, it’s a good idea to talk through your options with a lawyer before you commit to anything. Even if you do trust your spouse, it’s not a bad idea to have a 30- to 60-minute sit-down with a lawyer, just to answer any questions you have, to point out any warning signs, and (if nothing else) to give you peace of mind.
It’s not enough to look around on the internet for information. Podcasts and websites (like this one) are no substitute for the advice of an experienced lawyer advising you on your specific situation.
OK, let’s say that you’re at the point where you’ve worked out everything with your spouse, and now you’re ready to make it all “legal.” This is the point where you definitely need to sit down with a lawyer. Do not sign anything without talking it over with your lawyer.
Your lawyer will draw up at least three documents:
The Joint Petition for Divorce, in which you and your spouse formally ask the court to grant you a divorce and to approve your Divorce Agreement.
The Divorce Agreement, which is the contract that sets out how property and debt will be divided; how alimony (if any) will be awarded; what the child custody and visitation will be; how the financial responsibilities for the children will be divided; and other miscellaneous provisions, such as restoring the wife’s maiden name. [See our Ultimate Guides to Dividing Assets in Divorce, to Alimony, to Child Custody and Visitation, and to Child Support.]
The Final Judgment of Divorce, which is the only document that the judge will sign. This is the document that transforms your Divorce Agreement from a mere contract into an enforceable judgment of the court. You are not divorced until the judge signs the Final Judgment. [Pro Tip: That means that if you have sex with someone else before the judge signs the Final Judgment, you’ve committed adultery, and your spouse can ask the judge to not sign the papers. Proceed at your own risk.]
The 60-Day Waiting Period
Judges aren’t allowed to approve a Final Judgment of Divorce based on irreconcilable differences until the Joint Petition for Divorce has been on file at the courthouse for at least 60 days. Why not?
The idea is to provide spouses with a “cooling off period” between the time they petition for divorce and the time that the divorce is entered. You are absolutely allowed to withdraw your consent to a no-fault divorce at any time before the Final Judgment is entered, and you do not need to have a good reason to do it. You don’t need any reason at all. The only thing you need to do is to file a document with the court that simply says that you withdraw your consent to the no-fault divorce. Doing this doesn’t necessarily stop the divorce, but it keeps the judge from granting a divorce on the basis of irreconcilable differences.
Can you withdraw your withdrawal (i.e., re-agree to a no-fault divorce after you’ve withdrawn your consent)? Yes. There’s nothing unusual about spouses going back and forth in their own minds as to whether to agree to a divorce. What matters is, did the parties agree to a divorce at the moment that the chancellor signed the papers — whether they went back and forth leading up to that moment doesn’t matter.
A far trickier question is whether the Divorce Agreement that you signed is still binding even after you withdraw your consent to a no-fault divorce. To answer this question, you will need to discuss the specifics of your situation with your lawyer.
NO-FAULT DIVORCE TRIAL
What if you and your spouse agree that you should get a no-fault divorce but can’t agree on how to divide property or what form of custody should be awarded? The law allows you to stipulate to the no-fault divorce and to all of the agreements that you have been able to reach, but to have a trial so that the chancellor can decide all of the issues that you have not been able to agree upon.
This process requires you to sign an agreement that provides that you have agreed to the no-fault divorce and anything else that you have agreed upon. The idea is to lock both spouses in on their agreements. The agreement also lists the issues that you have been unable to agree upon and which you want the chancellor to decide. Unlike the true no-fault divorce described above, once you have signed this agreement, you are far less able to withdraw your consent to the no-fault divorce.
As to the issues that you were unable to agree upon, these will be tried before the judge like any other trial, and the judge’s decision will be final and binding — even if you completely disagree with it. This is the risk that you take; by agreeing to let the judge make the decision(s), you are stuck with whatever the judge decides.
Your agreement and the judge’s decision will be written into a binding, final judgment of divorce on the basis of irreconcilable differences. The divorce is final once the judge signs this document.
