The Divorce Process
If you and your spouse cannot solve your problems and a divorce is in the cards, you're probably concerned about what happens next. Divorce can be an extremely complicated process and the divorce laws are different from state to state.
This information is designed to provide you with an overview of the entire, complex divorce process.
Hire an experienced divorce lawyer
Whether you decide a divorce is necessary for you and your spouse or you've been handed divorce papers from your spouse, a divorce lawyer will be able to guide you through the process and make you aware of your rights. No matter how friendly your spouse may be, the divorce laws are complex and it is important to have a divorce attorney working for you to protect your rights (and your children's) and make sure that you understand the legal impact of your decisions.
Make sure you hire a divorce attorney and not just someone that has dealt with a divorce case or two before. Your divorce case will touch the most significant areas of your life: where you live, personal property, custody and support of your children, and more. You don't want to blindly entrust those issues to the attorney who handled your last traffic ticket or wrote your grandmother's will.
When you are evaluating attorneys, you'll want to ask specific, detailed questions like:
- How much are your fees, and what are your billing procedures?
- How much experience do you have in divorce law?
- Do you think it is preferable to negotiate or to take a divorce case to trial?
- What can I expect to get out of my case (like property, alimony, child support, etc)?
- How much will I have to pay my spouse and/or receive?
- How can I protect my assets?
- Are there alternatives to litigation?
- How can I protect my children?
Be wary if your spouse suggests using his or her lawyer. In most states, a lawyer cannot ethically represent both parties, since there are always conflicting interests. Therefore, it is the attorney's job to protect the interests of the party who hired him over those of the other party. You need to make sure you each have your own attorney whose only job is to represent your interests.
Total Lawyers makes it easier than ever to hire an experienced divorce attorney. When you speak with a divorce lawyer, you'll get answers to your questions, a good general idea of how the case will pan out and an estimate of the costs.
Meet with your divorce attorney
Once you have selected a divorce lawyer, they will meet with you discuss your options. There will be tough questions that you will need to answer honestly and completely, because the divorce attorney will need to know everything about your marriage, assets, spouse's assets, your expenses, your children, and many other issues that surround your case. You must also be prepared to bring financial documents like tax returns, bank statements, bills and mortgage documents.
Your divorce attorney will prepare, file and serve your divorce papers.
The document that initiates a divorce case is called the "petition". The divorce petition lets the courts know the one of you or both of you wish to end the marriage. The petition also informs the court of all the relief you are seeking like child support, alimony, name change, and division of property,
If you are responding to a divorce petition that was filed by your spouse, your divorce attorney will file an "answer" admitting or denying allegations contained in your spouses petition. Your divorce lawyer may also file a "counterclaim" or "cross-petition" if you have your own reasons for filing for a divorce or want to raise issues your spouse didn't include in his pleadings.
If you are the one filing the petition, you are referred to throughout the case as the "Petitioner." If you are served with the petition, you are called the "Respondent." Usually, your divorce attorney will be able to gain service of the petition on your spouse within a couple weeks. However, if your spouse is avoiding the petition or has left town, your divorce lawyer may need extra time. If you and your attorney cannot locate your spouse to serve process, then you may be able to achieve service by publication in the local newspaper of the last known area where your spouse resided.
Your divorce case begins and so does the waiting period
Some states require that a certain period of time pass between the filing of the petition and the final disposition of the case. Other states require a waiting period before the petition is filed.
Temporary orders
The court may enter temporary orders in an effort to preserve marital property, make sure all the household bills are getting paid, provide for a spouse who may have no source of income, and to provide for the needs of any children. These orders are only in effect while your case is going on. After the case has been completed, these orders dissolve. If your spouse causes any sort of problems during the case, you can apply for a temporary restraining order to stop your spouse from contacting you or from disposing of particular assets. If your spouse's misconduct requires you to seek a temporary order, your spouse may be required to pay your attorney fees for that motion and hearing.
Discovery
The core of many divorce cases is "discovery." The parties are permitted to request and review detailed information from each other about income, assets, custody and any other type of issue that pertains to your case.
If your spouse refuses to provide this information, your divorce lawyer can obtain an order from the court that will require your spouse to disclose all relevant information and order them to pay your lawyer fees. By the same token, you will be expected to promptly comply with any legitimate discovery requests.
Settlement
Most of the time, the court will encourage spouses to settle the case as opposed to going to trial. Judges know that contested divorces can be emotionally damaging and unnecessarily expensive, particularly where there are children involved. Although a good divorce lawyer will recommend the possibility of a settlement, the final decision is up to you and only you.
Settlement is so strongly favored that many states make provisions for a "divorce by agreement." If both parties can agree on the issues regarding division of property, child support, alimony, custody and visitation, then the agreement is binding in a court. The court will then enter a final degree based on all the agreed terms and conditions. This is a great option for couples who can get along well enough, because it speeds up the process of the divorce and minimizes the stress on the children.
Trial
The court will schedule a trial date if you and your spouse do not agree on a settlement. Your attorneys will be able to call witnesses, and you'll have the opportunity to testify. Your lawyer will also get to cross-examine your spouse and any witnesses called by the opposing party. Normally, divorce cases are not tried before a jury but rather a judge has the final say. After the trial, the judge will give a final decree resolving concerns in the case like property distribution, alimony, child support and custody, visitation and attorney fees.
However, your trial is not always the conclusion of your case. The losing party can appeal the decree that was made by the judge, which will then extend your case for another year. This tends to add expenses and bad feelings for everyone involved in the divorce-another reason that it's preferable to pursue a settlement if possible.
Alternatives to Trial
Alternative dispute resolution (ADR) has become a very accepted and popular alternative to trial in recent years. There are several forms of ADR that are basically non-trial procedures where the parties seek the services of a neutral third party to help them resolve their case without a trail.