A Guide To The Vocabulary Of Divorce
Like so many things in the modern world, divorce and the legal dissolution of relationships has its own vernacular.
Here’s a brief glossary of some common terms everyone should understand, at least a little bit—after all, in the legal world a small word change can often compel a big life change.
Disclaimer: I’m not an attorney, not an accountant, not a mediator, not a financial advisor. Don’t use this as gospel. It’s not definitive. In some cases, it may not be entirely accurate. And please don’t make any big or final decisions based on this. If you need legal counsel—and most of us do—then talk to a lawyer.
In alphabetical order:
Alimony (aka Spousal Support)
The recurring payments provided by one former spouse to the other, to create better balance between their disparate individual incomes or financial circumstances. Numbers, percentages and ratios are usually open to negotiation, but also are almost always calculated, at least in part, using guidelines in the laws of the former couple’s home state. For example, she’s a big earner; he’s a smaller one, so she owes him alimony, paid monthly (or on some agreed upon recurring schedule) for whatever number of years are proscribed in their particular state’s law.
Alimony is different than, and disconnected from, any Child Support payments a splitting couple may agree on. Alimony is only to address post-breakup financial inequities, if any. Child Support is intended to help care for children only, not redress other imbalances. Ex-partners may agree on one or the other or both such payments.
Attorney is just another word for “lawyer.” Both words mean the same thing—someone who has a state-issued license to practice law, by virtue of having passed that state’s Bar Exam, which is a test administered by the local Bar Association—the professional lawyers association.
Some states do not require that people have a law school degree before taking the Bar Exam; most states do. There may be reputation benefits, or human network benefits, but there are no practical or legal benefits to having gone to a big name law school or having passed the bar exam on the first try. You can fail the Bar Exam repeatedly and keep re-taking it until you pass. Scrappy lawyer Tina Tenacity, who didn’t go to law school, or went to mail order law school and failed the bar exam ten times before passing, has the same rights and privileges as an attorney as does Baron Brahmin, who was editor of the Harvard Law Review and passed the bar exam in his sleep. Both are credentialed lawyers, officers of the Court. Tina may be so smart, savvy and brave she crushes Baron. Or not. So whether their paths to being lawyers matters is up to you. Do the homework: Ask for references.
In most circumstances, when children are involved in a divorce or family break up, the law and Courts take special care to look out for the kids’ interests, as a separate matter from the other terms of the split, or the circumstances of the parents. There is basically no situation where the law or a Judge will allow children to suffer to take care of anyone or anything else.
Child support is the money one parent pays the other, usually on an ongoing basis but sometimes in a lump sum, for the care and comfort of their shared children. The amount and schedule of payments is almost always regulated under law, but the two parents may agree on different terms, as long as those terms are the same or better than the law requires. No parent may trade child support for a car, for example.
Various factors go into calculating child support but the most important are:
A. Will one parent have a larger responsibility for the care and comfort of the children?
B. How much does it reasonably cost to provide decent care and comfort to the children?
C. Is decent care and comfort enough? Or has the child been brought up in a better-than-decent lifestyle that should be continued?
D. How much can the paying parent afford to pay?
E. What are the applicable, local state laws?
States have different regulations but Child Support is almost always carefully governed by law. Any decent, local attorney or mediator will know what your state proscribes, or you can look it up online.
This is a fairly new, modern idea—that, to avoid costly, painful litigation fought in a Courtroom, people can work with Collaborative Attorneys, to create a less antagonistic process, leading to an out-of-court settlement, all the while each splitting partner still has the benefit of personal legal counsel. (Which is unlike when a couple uses a mediator. See Mediator.)
Since 2009 there has been a movement to create uniform guidelines and principles for this type of thing into specific state laws. But as of this writing, while some states have adopted such laws, most have not.
For our purposes here, though, there’s no need to worry about specific laws. In virtually every state you can find attorneys who bill themselves as Collaborative Attorneys, and who will try to get you that more amicable, out-of-court settlement.
Of course, your soon-to-be-ex has to agree to this framework and also hire a Collaborative Attorney. Some Collaborative Attorneys market themselves in teams—one for you, one for your soon-to-be-ex—with the selling point being, we the Collaborative Attorneys have done this before, we know each other and how this works, if the goal is speed, cost-containment and amiability, then it’s a plus your Collaborative Attorney has a pre-existing relationship with your ex’s Collaborative Attorney. That may or may not be true. As always, check references.
As a practical matter, if you use Collaborative Attorneys you will probably spend time in conference rooms, either all together or separately down the hall from one another, hashing out stuff in a collaborative way. When disagreements happen, you may empower the Collaborative Attorneys to go away and on their own suggest ways to break the impasse. But even then you and your soon-to-be-ex still must approve everything; in no case are you required or even advised to let Collaborative Attorneys decide things for you.
Cost-wise, Collaborative Attorneys are still attorneys and bill by the hour, but given their commitment to amiability, there should be less cost than hiring traditional, combative attorneys—it’s painful how many hours get billed as antagonistic lawyers snipe at each other in endless emails, filings, phone calls and meetings. In theory, that’s all eliminated with Collaborative Attorneys—as also are expensive, awful hours in courtrooms.
An important caveat: “Collaborative” may or may not mean “peaceful.” In the world of Collaborative Law, there is an unfortunate subculture of “wolves in sheep’s clothing”—lawyers who sell themselves as mellow collaborators but are really just looking for clients to milk by fighting all the time anyways. But on balance I think the Collaborative Law concept is a great one. It gets rid of the temptation to view divorce as a zero sum game—where there are winners and a losers, or if your ex gets something that means you lost something. It’s more expensive than using a mediator, but cost is not the only factor to weigh. (See Mediator.)
“Common Law” Marriage
Good news: pretty much everything you think you know about so-called “common law” marriages is wrong.
Many people believe that if a couple lives together for long enough, or does certain things, then the law considers them to be married whether or not they ever actually got married or registered their union with the law (that is, went to City Hall etc.)
Not true. In the vast majority of US states, there is simply no such law or trigger. Marriage is defined as a willing lawful union of two people who have taken the appropriate legal steps, e.g. got a marriage license or certificate. No other couples are married.
A small number of states do have “common law marriage” statutes or regulations on their books, but these are rarely if ever enforced or even brought up, and they usually have very specific requirements for being invoked—say, if a couple describes themselves and acts as though married, for example by filing tax returns jointly or if one partner uses the other’s last name.
All this is likely irrelevant for you but if you think it’s a factor in your split, do your homework online or talk to an attorney to find out what’s what in your state.
“Conflicting Out” an attorney
This is a tactic used by people who want to prevent their soon-to-be-ex from hiring a certain attorney. It’s pretty much the same thing as interviewing a prospective attorney to see if you want to hire her. But then the trick is, once you’ve spent any time with that attorney and shared personal details of your situation, you’ve then wrapped “attorney client privilege” (that is, professional confidentiality) around your relationship with that particular attorney whether or not you actually hire them. Which means that particular attorney is now prohibited from working with your soon-to-be-ex.
The point is, if there are divorce attorneys that are known to be truly scary or impressive or who routinely scorch the earth to get their clients what they want, you may want to prevent your soon-to-be-ex from working with them against you, whether or not you personally want to hire them to be your lawyer. So you meet them ASAP and “conflict them out.”
Some divorce attorneys are so well known for being fearsome nuclear weapons, they know they’re constantly being “conflicted out,” so they charge fees for initial consultations. In their view, if you’re going to “conflict them out” you should pay for the privilege (which, if you think about it, is entirely consistent with the reason you want to conflict them out in the first place.) But when you call to set up your meeting, you don’t have to mention “conflicting them out” (and you shouldn’t.) Just ask if they charge fees for initial consultations, and their office will tell you.
If a splitting couple has children then custody of the kids must be decided in the Divorce Agreement. Such can be a difficult and nuanced negotiation but I’ll try to summarize some key aspects.
First, keep in mind that the law and the judge always want to put the best interests of the children first. Period. And if you and your ex can’t agree, the judge will decide what’s best for your child. Which may not be what you want. So tread lightly. And know that while a judge is very unlikely to rewrite a deal if a divorcing couple both seem content with an agreement, the judge can and will do so if he feels the best interests of the children have not been adequately addressed.
Next, there is a popular misperception that custody is a zero sum game, where one spouse wins and the other loses. This is simply not true. The two spouses can agree on any arrangements they want, and hopefully where both feel content. I think this always should be the goal. There is no requirement that either parent be given “primary” custody, or any dominant role. The two parents can agree that custody is 50/50 and that neither can unilaterally rule. In my own Divorce Agreement the entire custody issue is covered in just one sentence: “The Husband and Wife shall have shared legal custody of the children.”
All the logistical details and everything else—and there typically is much, much else—is usually called the Parenting Plan. This covers the many practical parenting issues that also usually get negotiated. Although custody is covered by one sentence in my divorce agreement, the Parenting Plan takes up several pages detailing various day in day out, year in year out, practical issues, for example, how school vacations get divided up.
But if one divorcing parent does get “primary” custody, then that parent is the decider if they choose to be. They can always solicit the opinion of their ex, but they’re not obligated to do so. This does not mean that the primary custody parent can just impose their will without restraint. The non-primary parent can always sue and ask a judge to decide. And the judge will almost always make their ruling based on what he believes is the best interests of the children, regardless of what either parent says.
In any case, the goal of any custody deal is to try to avoid conflicts, not create them. To create a practical framework for a relationship between the two divorced co-parents that makes life workable while keeping the children’s best interests in mind. And most issues are practical, caretaking ones. Where do the children live, and when and how often? Where do they go to school? What if any medical situations need to be dealt with and when? How are holidays and vacations allocated? Who pays for school tuitions or summer camps or other child-specific expenses? Etc.
Divorce Agreement (Separation Agreement)
When you get married it’s a contractual relationship, meaning it’s governed by contract (and other) law. So to divorce, you need a new contract—a Divorce Agreement, aka a Separation Agreement.
This is true in every state—as is the requirement that your Divorce Agreement be approved by a judge. You do not need a lawyer to do a Divorce Agreement, you can do one yourself, or work with a mediator (which is different than a lawyer; see Mediator,) but you always need to get it approved by a judge.
Separation Agreements can be one page long or a thousand. They can cover just the minimum the law requires or the most arbitrary or bizarre details, say, what color underwear your kids wear on what days.
If the two divorcing people have agreed to sign their Divorce Agreement, a judge will usually approve it. With a few important caveats: The judge will want to determine—sometimes by asking, to your face, in the courtroom—that both parties understand the specifics of their Agreement, that they had ample opportunity to negotiate and think about it, and that they are signing under their own free will (meaning, they are not feeling undue pressure).
Once a judge approves it, a Divorce Agreement governs the post-marriage relationship of the two parties more or less forever. Of course, over the long course of time the Divorce Agreement may become moot, as its requirements expire or the parties move completely into their new, separate lives. But, for as long as there are obligations or disputes between the parties, the Divorce Agreement rules. If there’s a dispute not covered in the Agreement, it’s either worked out between the parties, or someone sues, goes into court and a judge decides. And that new agreement between the parties, or that judicial ruling, becomes part of the Divorce Agreement.
Note: Because Divorce Agreements are filed with the court, they are public documents. Meaning, anyone can see them. This is how TMZ, the National Enquirer and other gossip outlets get to publish the specifics of celebrity divorces—they go to the courthouse where the celebrity divorce was filed and get a copy of the Divorce Agreement. Does it matter that your Divorce Agreement is public? You may not be worried about TMZ, but how about your friends, and kids? You can be comforted that most courthouse records are not on the internet and won’t be for some time. (There’s way too much cost and work to digitize every court’s records.) Still, given enough time everything ends up on the internet. Maybe the takeaway is, don’t put anything in your Divorce Agreement you don’t want anyone to ever see.
If you know what a Life Coach is, you pretty much know what a Divorce Coach is—it’s a Life Coach with a specific, narrow specialty, helping people who are working or struggling through, or just thinking about, a divorce. Many coaches are formally trained and certified, though no broadly agreed upon education standards yet exist for Coaching, and there is no law, regulation or professional association (e.g. like the Bar Association for lawyers) that even requires any certification at all. So do your homework. And bear in mind, like any Coach, a Divorce Coach is not a therapist or psychiatrist. Divorce coaching is a flexible, goal-oriented process designed to support, motivate, and guide people going through divorce to help them make the best possible decisions for their future, based on their particular interests, needs, and concerns.
As divorce is a lawsuit, a form of litigation (see Litigation) at some point the divorcing parties have to file appropriate paperwork with a court, typically in the town or county in which the couple reside. These filings, or “Divorce Papers” are almost always very short, simple forms.
To get a divorce started, only one spouse has to file papers. In many cases, because they have together decided to get a divorce, both partners choose to file together, at the same time. But if one party chooses to file papers on their own, at some point the other spouse needs to be informed of that, and given copies of the papers. At which point they then are required to file their own set of papers, telling the court they are aware that the lawsuit (the divorce) has been inaugurated and so the legal process may begin in earnest. Different states have different schedule or calendar requirements for how much time is allowed for these type filings.
Despite what you may have seen in old movies, in almost all states, there’s no need to hire a detective or marshall to “serve” divorce papers on a spouse. Probably, you can simply hand them to him or her. (To find out your state’s requirements, if any, just look it up online.) Of course, if your spouse goes into some kind of weird psychological place, and denies you ever did give them the papers, well then yes, in that case, you do need to hire a process server to “serve” the papers again, and file an affidavit with the court stating that your spouse indeed has been served the papers. But that’s rare—all that weird spouse has done is to buy themselves a little time, and incurred the cost of a process server (of which they’ll have to pay half, of course.)
Typically when filing divorce papers you have to pay some relatively small filing fees, maybe a few hundred dollars. If you’re working with an attorney, they can and should do these filings for you. If you want to save money, look online and find out what court you need to file in, and print out or download the forms and do everything yourself.
Family Property (aka Marital Property, Assets & Debts)
In a divorce or legal split, a big issue is, who gets what? Things which are jointly owned by both splitting partners are called “family property,” “marital assets” or “marital property.” Couples also may have “family liabilities” or “marital debts.” That is, two people in a marriage or civil union may not only jointly own possessions and wealth, they may also have obligations, debts and loans together. Which also need to be divided.
States have varying laws on how things can be sorted out, but in general, the law assumes most things are family property. A big exception is, if the two partners have specifically, already agreed that some assets or debts do not belong to both. That is, if a couple has a “pre-nuptial” or “post-nuptial” agreement—a formal contract they negotiated in the past (not as part of their breakup) that sets out how things get divided in the event of a split—then those pre-existing contracts rule. (See Pre-Nuptial Agreement and Post-Nuptial Agreement.) Of course, if one party claims their post- or pre-nuptial agreement should be considered invalid (say, because they were pressured to sign under duress,) then the parties either need to throw out their previous agreements and start over and renegotiate everything, or go to court and ask a judge to decide.
But the law usually does not impose itself on people; two people can agree to divide things however they want, as long as both state they are doing so informed of their rights and of their free will. And in general the law does not carve out anything—as stated above, unless the parties agree that an asset or a debt does not belong to both, then the law assumes it does, from the most valuable things—the house, mortgage, business, cars, pets, family photos, retirement accounts, etc—to the smallest—food in the kitchen cabinets, the $100 you loaned your best friend, the paper-mache cat (or whatever that is) your kid made in art class. And depending on circumstances, family property can be anything and everything, regardless of how or when stuff was acquired. Say, husband bought a valuable antique car well before he was married. But now, divorcing, many years have passed and the couple have no pre- or post-nuptial agreements, so the car is now a marital asset and the wife is entitled to half its value. (Since you can’t cut a car in half, they either sell it or get it appraised and the husband pays the wife 50% of its value, either in cash or with something else she agrees to take.)
In some places and cases, the duration of a marriage can play a role in determining what is family property. (See Long Term versus Short Term Marriages.)
In a divorce or legal breakup, naturally, a couple’s existing shared property and debts get divided up one way or another. But the law also may allow for, or even require that, the parties divide up future property, income and debts.
For example, say a wife worked to help pay for her husband’s medical school. A judge could agree he owes her for that, either to reimburse her for the medical school cost, or also to give her some part, maybe even as much as half, of the ongoing and future financial benefit of his being a doctor. That is, of his professional income. But maybe the wife only paid for part of the husband’s medical school costs and the husband has student loans. So the judge also requires that the wife help pay off the loans. Or some other blended formula. Maybe the judge imposes, or the parties agree to, some kind of limits on the deal. For example, maybe the wife only gets a certain amount of money, or only gets a percentage of his income, for a certain number of years.
It can be complicated. Another example:
Commonly, two spouses exist in their marriage in one household where their two incomes (from all sources) are pooled to cover expenses. With the divorce, they’re breaking into two new households. One new household has her income. One has his. Maybe she earns $200,000/year but he earns $50,000 year. They’ve agreed on how to divide up their possessions and debts, but is he entitled to some of her income in the future? Could be. The usual rationale is, they both are entitled to continue living more or less the same lifestyles as before the divorce, or if that’s not possible, then neither should have their lifestyle reduced that much more than the other. So a judge may rule the husband is entitled to some of her future income. Since as a married couple they had $250,000 combined annual income, maybe after the divorce they both get $125,000 per year each, which means she owes him $75,000 per year. Or some other formula. Local state law may have an effect, too, for example, defining the number of years the wife can be required to pay her ex-husband that way. In any case, often the law allows people to negotiate not just the division of their present circumstances, but also future ones.
A general term, used to describe the basic financial situation and level of material comforts of an individual, group or family. Divorcing people often try to maintain their married “lifestyle” —the level of comfort to which they were accustomed in the marriage. This can be a big deal if the divorce could leave one partner significantly wealthier than the other. On the other hand, if a divorce requires that both partners reduce their lifestyles relatively equally, there’s nothing to be done. On the other, other hand, if a couple is super-wealthy but after the divorce he’s still going to be super-wealthy but she’s only going to be wealthy, she can argue she needs a particular financial settlement to maintain her super-wealthy lifestyle, or to allow their children to maintain their super-wealthy lifestyle that, on her own, she can’t afford.
For example, say Dad is CEO of a huge business. Mom is a school teacher. Both are hardworking, honorable people. Dad is going to pay Mom very generous alimony (see Alimony.) No problem. But how much child support? Just enough to cover the basics? Food, clothing, health care, schools, occasional vacations? Before the divorce the children had nannies and cooks and flew first class, etc. Mom argues the children should not be deprived of that lifestyle despite that her teacher salary plus the alimony can’t provide it. Dad disagrees; he feels he’s paying plenty already. But Mom persists, they end up in court, the judge agrees with Mom and orders Dad’s child support payments to be ten times higher. Dad hates it but unless he wants to be in contempt of court, he pays. An extreme example, but get it?
This is just another word for lawsuit, the legal dispute-resolution process where people or parties go to court to settle a disagreement.
Marriage is a legal contract. A marriage is terminated—that is, a divorce is granted—when the spouses agree to replace their existing contract with a new one, called the Divorce Agreement. (See Divorce Agreement.) This almost always involves some sort of litigation—even if both spouses are the sweetest people who agree easily on everything, their Divorce Agreement must be reviewed and approved by a judge.
Some non-marriage relationships are legal contracts, e.g. “common law” marriages (see Common Law Marriages,) and their end also usually involves a contract and a judge—meaning, litigation.
Some relationships aren’t legal contracts themselves but have elements that are contracts—for example, if two never-married lovers buy a house together, if they later break up and can’t resolve the house ownership they may end up in litigation.
Long Term versus Short Term Marriages
Specifics vary by state, but the duration of a marriage can affect the financial and other settlement terms of a divorce. In a nutshell, in a short marriage, the spouses are presumed to have less close and deep ties than in a longer one. So, for example, a wife may argue that because the marriage was so short, some amount of money that belonged to her prior to getting married should not be now considered marital property, belonging to both of them (see Marital Property.) If the law allows and the judge agrees, that would mean she gets to keep all that particular money herself and not divide it up. Conversely, if that couple was married for a long time, then the fact that certain money belonged to the wife before the marriage will not be taken into account and it will all get divided.
The duration of a marriage may also factor into calculations about alimony, future income and other financial matters. But when it comes to custody and child support, the overriding concern is the best interests of the children. (See Child Support.) So regardless of a marriage duration, if splitting parents are fighting over where and when the child will live and a judge has to weigh in, then who can provide the best home and environment for the child will be the judge’s primary concern, much more than some math equation that takes into account marriage duration. Likewise, in the big picture, child support calculations do not depend on how long a child’s parents were together—they first and foremost depend on how much it’s reasonable to assume it will cost to provide care and comfort to the child and how much each parent can afford on their own.
States have various thresholds for short versus medium versus long term marriages. Some states have three categories, for example, 0-7 years; 7-17 years; and 17+ years. If you think this may matter to you, do your homework and find out if any laws or regulations apply in your state.
A mediator is a licensed professional who acts as a facilitator, a knowledgeable but neutral “middle man,” to help two parties in a divorce (or any dispute) negotiate a legal settlement. The process of getting credentialed to be a mediator varies by state.
It’s important to remember that even if the mediator you hire is an attorney, that they are not your advocate. The key difference between hiring a mediator versus an attorney is that an attorney has one client. You. Or your ex. An attorney therefore is an advocate for only one side, whose professional responsibility is to protect and further the interests of their client, even if that is at the expense of the other side, or requires a biased interpretation of a law or circumstance.
A mediator works for both parties and does not take sides. A mediator’s professional responsibility is to get a deal done, any deal, as long as its lawful, and to understand their state’s laws enough to have that settlement be found lawful and approved by a judge.
In divorces, the upside of using a mediator is the process tends to be less expensive and faster. The mediator does not want to hear, and will push back against having to listen to, your problems. Or your ex’s problems. Or complaints. Or stories. Or anything except getting a deal done, relatively quickly.
All good, right? But there’s a downside risk, too. From a mediator’s perspective, a divorce is basically a list of boxes that need to get checked off. Property accounted for and divided? Check. Children accounted for and custody deal in place? Check. Alimony calculated, if any? Check. When all the boxes are checked, you’re done, and off the deal goes to a judge.
But it could be a bad deal. No one is looking out for, let alone protecting, your interests. That’s not a mediator’s job. The mediator is not looking out for either party’s interests. Most mediators try to be fair, of course, but then in the end, what’s fair? So the mediator focuses on just getting the deal done. And you can end up getting the minimum lawful deal, despite that you arguably deserve a better one. Or just a cleaner, simpler, or more comprehensive one.
Again, a mediator is not responsible for either, both or neither party getting a good deal, or even the right deal, as long as the parties agree to the deal and it conforms to law. If you show up to a mediator meeting high on drugs, or just in a totally weird mood, and agree to give all your money and property to your ex, leaving you penniless and unemployed, well, ok fine. That’s your call. The “division of family property” box gets checked and the mediator moves on. But any half-decent lawyer representing you would never let that happen.
In a situation where the two parties just can’t agree, a mediator will attempt to bridge the gap. But they’re not out to win prizes for creativity. They’ll start by saying, meet halfway. And if that doesn’t work, they’ll offer slight deviations from halfway and see who caves first. Box checked, moving on.
Finally, if you ask a mediator for an opinion, most will not give it. They’ll always offer you their understanding of the law and how it applies to your deal—for example, if you have no idea what alimony is or if you’re entitled to it, they’ll explain your state’s laws and how they may apply, given whatever the mediator knows about your situation. But if you have a lawyer, they may believe you should get more than the law allows, and pursue a strategy to fight to get that.
“No Fault” Divorce
In the past, the law required that couples could not get a divorce unless one or both was found to be “at fault”—guilty of some legal transgression that, in the eyes of a court, made the marriage unsalvageable. Otherwise, the couple had to stay married, no matter how miserable they were or how they both wanted out. And judges didn’t just take a person’s word that their spouse was at fault: If you sued for divorce, you needed some evidence or proof your spouse was guilty of some such offense, e.g. adultery, “mental cruelty,” etc. As amply dramatized in popular culture over the years, this gave rise to a seamy industry of private detectives who acquired evidence for divorce suits.
But the really bad consequence of these antiquated divorce laws was, if a couple wanted to get a divorce just because they were tired of each other, somebody still had to be found to be at fault. It didn’t matter if both husband and wife wanted out, a divorce could only be granted if someone was found guilty of some legal transgression, even if it was all just silly theatrics. So the perceived public humiliation of this “at fault” requirement kept many unhappy couples married for many unhappy years.
Thank goodness, we no longer live in those times. Judges and lawmakers no longer believe it is the court’s or government’s job to force any person to stay in any marriage. In the mid 20th century, various US states began creating new divorce laws, eliminating the need for somebody to be “at fault”—ergo, the name “no fault.” Today nearly every state allows “no fault” divorces. No one has to be guilty of anything. No one can be forced to stay in a marriage, period. If one person in a marriage wants a divorce, their wedlock can and will be ended, period.
And despite what you may have seen in old movies, because of “no fault” laws, today the old “at fault” transgressions are technically no longer available to use to try to extract concessions in a divorce. For example, if you discover your spouse is cheating, you have every right to be enraged and get divorced, but unlike the old days you probably do not have the right to claim that your partner’s infidelity means you’re owed money or damages.
Of course, the liberalization of divorce laws has not changed human nature. Divorce attorneys (and all people) still try to use negative portrayals of people either to influence a judge’s decisions (judges are just human, too) or attack a person to try to make them agree to things. Threats and extortion are still used, even if such bullying no longer has any real basis under law.
A Pre-Nuptial Agreement is a contract, negotiated and signed by two partners who plan to marry but before they actually do, that describes, often in considerable detail, what will happen if the couple divorces in the future. In short, it’s an advance Divorce Agreement, in case later there’s a split. (“Pre” just means the agreement has been signed before a marriage. “Nuptial” is just another word for “marriage.”)
There is no legal requirement anywhere for any couple to ever have a pre-nuptial agreement. Most couples do not have one. Those that do have such agreements tend to be couples where perhaps one or both partners has been married and divorced before, and experienced things they don’t want to again. Or where one or both partners have property or wealth, or businesses or deals, they want to make certain remain outside the marriage and do not become family property. (See Family Property.) Or where one or both partners simply has strongly held views on what certain divorce terms should be if there ever is one, and they want to get it on paper and agreed to ahead of time.
This is not to say that any couple who wants one can not have a pre-nuptial agreement. Anyone can.
Like all contracts, pre-nuptial agreements can be one page or a thousand pages long. There’s no standard, it’s entirely up to the couple what does or does not go into a pre-nuptial agreement.
If a couple with a pre-nuptial agreement does get divorced, it’s not always certain how effective that agreement will be. Various states treat pre-nuptial agreements in various ways—in some places they are very strictly enforced, in some places less so, and in all states a divorcing spouse can go into court to say that their pre-nuptial agreement should not be enforced because of some mitigating circumstance—for example, if a spouse can claim convincingly that he or she was coerced into signing the agreement, or did not receive fair legal counsel before doing so.
A post-nuptial agreement is exactly the same thing as a pre-nuptial agreement, except that the two partners who create and sign it are already married at the time they do.
As in other situations, in a divorce process one party can ask a judge to limit another party’s physical access to certain people or places or things. If the judge agrees to do this, the judge’s ruling is called a Restraining Order—as the name implies, it restrains a person or persons from doing certain things or being in certain places. Most judges look very poorly on attorneys or people who come looking for restraining orders without very, very compelling grounds for seeking one. Being legitimately scared for someone’s or something’s safety and security is a compelling reason. Just being totally pissed off is not.