Are you considering divorce and wondering what the process will be like? Your states divorce laws will determine what you go through once you have made the decision. Below is a broad outline describing the sequence of events for most divorce cases. Keep in mind that every divorce is different so, along with these steps you will have issues come up that pertain to your individual divorce.
Some states do not have laws that allow a couple to participate in a legal separation. In those states, you are married until a court decides otherwise. If your state laws allow couples to separate legally when one or the other spouse leaves the family residence your attorney will petition the courts for a separation agreement. This agreement protects the interests of both spouses and any children of the marriage by making sure that both parties meet their legal responsibilities to each other.
If your state doesn’t have laws that allow a legal separation your next step would be to contact your attorney or file a petition with the courts yourself requesting a hearing so that a temporary separation agreement can be ordered. This is done after filing a petition for divorce in states with no legal separation laws on the books.
To begin the divorce process a document called “Original Petition for Divorce” is filed with your local court clerk. In some states, this is referred to as a “Letter of Complaint.” Both documents are requests that the court grant a divorce and list any relief the party filing for divorce feels they are due.
The original petition or letter of complaint will identify the parties to the divorce and any children they may have. The party filing for divorce will have to state a reason as part of the petition or letter. In most states, this will be “irreconcilable differences” or “incompatibility.”
The person filing for the divorce will be named the “petitioner” by the courts while the other party to the divorce is referred to as the “respondent” or, in some states, the “defendant.”
The original petition or letter of complaint is then served on the respondent. Normally a member of the local sheriffs office serves the petition. Once the respondent has been served he / she has thirty days to hire an attorney and respond to the original petition for divorce. It is at this time that either party may ask for restraining orders, protective orders or temporary orders pertaining to child support and maintenance.
The court can issue temporary orders that outline specific actions that must take place immediately and last until the final divorce hearing. Examples of things covered in temporary orders are child support, spousal support and child custody. These orders are legally binding and not following them will mean finding yourself in court for contempt. If found in contempt, you can be jailed or fined according to the discretion of the judge.
“Discovery” is a legal mechanism designed for gathering information about either party to the divorce.
There are five steps to the discovery process. Although states and their laws may vary during the discovery process, the five steps below are common and will probably become a part of your divorce.
- Disclosures: Every state has rules of civil procedure and the way disclosure is conducted is determined by those rules. Attorneys for both parties request certain items from the other party. The list of items is sent to the other side and they must respond within thirty days.
- Interrogatories: This is a list of questions that the attorneys send to the opposing side. Most states set limits on how many questions and the response time is thirty days.
- Admissions of Fact: This is a written list of facts that is directed at the other party to the divorce. The party receiving the list of facts is asked to either admit to or deny each listed fact.
- Request for Production This is a legal mechanism used to obtain documents such as bank statements, statements of income or any documents the attorney feels will benefit his client. The party receiving a request for production is supposed to respond with the documents within thirty days. This part of the process can become a major obstacle to a swift divorce. It seems to be human nature to not want to turn over personal information and many times delay tactics are used at this part of the process.
- Depositions During depositions attorneys will take sworn testimony from the opposing party and any witnesses involved. Anything said during a deposition can be used in court should an agreement not be met and you end up in divorce court.
Mediation:
If you are lucky, this is as far as you will get in the process. During mediation, both parties to the divorce and their attorneys meat to discuss any conflicts they may have and try to come to an agreement that meets the needs of both. The “mediator” is a court appointed attorney, normally and is there to negotiate a settlement between the parties.
Trial:
If mediation didn’t work and there are unresolved issues a trial date will be set. During the trial, both parties have the chance to argue their case before a judge. The judge will then examine all the evidence and make a decision based on what he feels would be a proper settlement and outcome.
After the Trial:
Once a judge has made a decision the parties to the divorce will sign the final decree of divorce. The final decree states who gets what, any orders pertaining to custody of the children, child support amounts and any spousal maintenance that is ordered and any other issues pertinent to the dissolution of the marriage.
Appeal:
If you feel that the courts orders are unfair you may then file a motion to appeal the order and request a new hearing. This motion is filed with the same judge that put in place the orders and not many judges are going to set aside their own orders. You should not be surprised when the courts deny your motion. When the court denies your motion, you file an appeal with the state appellate court.
Marriages of short duration where there are no children or marital assets to split will see their way through the process rather quickly. If you have children and have accumulated assets during your marriage you should not be surprised when the divorce seems to turn into a long, drawn out and at times, frustrating process. Be patient because the Family Court system is hard at work trying to protect the interest of all parties involved in a divorce action.
