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FAQ: Divorce

The Effects of Divorce

Divorce can be a traumatizing event. It can affect your mental health, your family relationships and your productivity at work. What will be discussed here, however, are the legal effects of a divorce. What does a divorce do? One of the most obvious results is that the marriage is terminated. What are the other effects?

Naturally, parties in a divorce may remarry after the proceedings. Prior to the divorce, another marriage would be illegal bigamy. This is probably no surprise, but what does surprise people is that they may not be able to remarry right away. Depending on the state, sometimes the divorce decree is not final for a certain period of time so a subsequent marriage that occurs before the waiting period has lapsed will be invalid.

The termination of the marriage changes the legal relationship between the former spouses in the eyes of the law. The parties are returned to the status of perfect strangers. They are no longer responsible for each other's obligations except for those which they agree to be responsible for by contract (i.e., the divorce agreement). That does not mean that the former spouses are not liable for the obligations that they both entered into during the marriage. A divorce is not retroactive; it affects the future but does not change the past. Old obligations entered into during the marriage do not disappear.

Most property issues can be handled in a divorce agreement. The couple can decide what to do with their property and how to share their debts and liabilities as well. When the parties do not determine some of these issues in the divorce agreement then statutes will often come into play to determine what happens to the property.

Generally, the right of one spouse to the property of the other will be terminated if the property interest is not yet vested. Vested means that the person has a present interest in the property, not just an expectation of a future interest. For example, if the spouse is named as the beneficiary of a life insurance policy then the policy may not "vest" in the beneficiary until the insured spouse dies. On the other hand, a person's pension plan may provide for survivor's benefits for a spouse if the couple was married for at least ten years. If the marriage lasted ten years before the divorce then the spouse of the employee has already earned the right to receive the benefit.

The divorce does not necessarily terminate property interests, but the effect of other contracts or of statutes may do so. For example, an insurer may state in its contract with a person that, upon divorce, a spouse who is named as the beneficiary of a life insurance policy will automatically have his or her interest terminated and any children would become the beneficiaries.

Similarly, state law may say that following a divorce a spouse who is named as the beneficiary of a will shall be treated as if he or she also has died and therefore the surviving ex-spouse will not get a share of the estate. The general purpose of laws like this one is to do what the insurer or the legislature thinks that the parties would have wanted to do in these circumstances. They think that people who get divorced generally do not want their money to go to their former spouses.

It is important to understand the limitations of what a divorce can do. Divorce does not automatically undo other legal agreements. For example, if a person conveys an interest in real estate to his or her spouse then a later divorce will not reverse the transaction. The parties must settle the property issue in the divorce agreement or they must use the same legal procedures to transfer title back to the formerly owning spouse.

Divorce can raise many complex legal issues. The good news is that most do not have to be left up to chance. Generally, if these issues are addressed in a negotiated divorce agreement then it will not be necessary to let state law decide instead of the individuals concerned. It is also good to know that laws are generally set up to accomplish what most couples would like to accomplish: to terminate the marriage, to eliminate responsibility for the debts and liabilities of the former spouse, and to keep his or her own money.

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