Getting a Divorce? A Legal Guide
From Getting an Attorney to Going to Trial, Divorce Can Take Time, Toll on Partners
The decision to get a divorce is just the beginning of what could be a lengthy process, financially and emotionally. If you have children, the effects could be long-lasting. But the legal process of a divorce can also take time. If a divorce is contested, it could take more than a year for the marriage to be dissolved. Even when both spouses agree that the marriage should end, the steps can be tedious. To get details about how it works in your state, consult the clerk of court or legal aid office in your area — or find a family law attorney who can give you the legal advice you need.
In the meantime, here is a step-by-step legal guide to the divorce process. While it doesn’t include every detail, it should give you a broad overview of the process.
STEP 1: Decide how you want to file, who will represent you and other legal details.
Once you’ve decided to file for divorce, your first step is to determine which course the process will take. If you don’t have money for a divorce and your case is a simple one without children or many assets like a home, you may want to consider a divorce kit or help from a paralegal, who can not give legal advice but who can help you file the correct paperwork.
If you’d prefer an attorney, there are other issues to consider before filing. Should you file for an annulment and how can you do that? Will it be an amicable divorce? If so, both parties should if filing a collaborative divorce action is feasible? Or do you need mediation, in which a neutral third party is hired by both parties to help the couple reach a compromise while dissolving the marriage? In the collaborative process, both spouses and their attorneys work toward a divorce agreement. If the divorce is contested by either party, then each individual needs to find an experienced divorce attorney as a guide through the court proceeding. When picking an attorney, be certain to ask questions about experience, what to expect from the divorce process and how much he or she charges for legal fees and other costs.
STEP 2: File a divorce complaint or petition based on your state law.
With the representation issue settled, the legal process begins. Since divorce proceedings are governed by each state’s laws, check with your attorney or the clerk of your local court as to the appropriate filing procedures.
The laws vary by state. They become more complicated if you have moved from one state to the other, which may require you to make a decision about where to file that is best suited to your needs. Whether it’s how long you have to live in a state to file to whether one state’s laws will be financially better for you, in the long run, this is really your decision.Also, in some states, if you or your spouse are pregnant when you file, that may affect when your divorce is granted as well.
Remember that some states require proof of certain grounds, such as adultery, before a divorce is granted; others allow for no-fault divorces.In some states, the finding of grounds may have an effect on the divorce settlement. For instance, in some states, a judge may penalize a cheater, giving more marital money to the other spouse.
As for the courts themselves, many states have specific family courts that have jurisdiction over divorce proceedings.
The party seeking the divorce files the initial complaint or petition for divorce. This document contains the specific grounds for seeking the marriage’s dissolution and is served on the other spouse. Even in an amicable divorce, a complaint must be filed with the court.
In addition to serving notice on the other party, the divorce petition also serves as a guide for the trial, particularly in contested divorces where evidence and testimony will be taken and pleadings by each party heard. The spouse who is served the divorce papers is typically referred to as the defendant or respondent and is required by law to formally respond to the complaint within a designated time. A response should detail what the respondent agrees or disagrees with in the initial complaint. Failure to respond could negatively affect the respondent’s standing in the proceeding and any court decisions.
Once the complaint and response are filed, the court will hold a hearing to issue temporary orders. These rulings, on such issues as who gets to stay in the house, child custody, spousal support and residential occupancy for children, are made based on preliminary financial information both parties provide. Many parents wonder how much child support payments will cost or how much they will get or pay in alimony. The answer is that it varies by state. And temporary child support or spousal support is usually adjusted as the divorce action, which could take months, proceeds.
STEP 3: Discovery.
In order to make more long-term decisions, the court requires more detailed information. To that end, both parties go through the discovery process. Both spouses gather all necessary information to negotiate the issues in question. Discovery can be informal, where some material is collected via letters and phone calls. Or it can be formal, which involves interrogatories, depositions and other sworn testimony.
Much of discovery typically focuses on financial matters. In addition to answering questions about assets, both parties usually are asked to produce documents such as bank statements, credit-card bills, receipts, tax returns, paycheck stubs, etc. The goal is to ensure that neither party is hiding assets that should be equitably divided between the couple. Attorneys usually prepare their clients for depositions and other legal proceedings so they know what to expect.
Other individuals — friends, relatives, accountants, employers — who have relevant information might be interviewed during discovery. It also is not uncommon for parties to hire experts during the discovery process to help determine contested issues, such as property division or child custody.With the information gleaned during discovery, both parties and their representatives then attempt to reach an agreement, or settlement, on the issues in question. Some settlements may include confidentiality agreements, particularly if the case involves a lot of money or an affair or information that one party does not want to become public knowledge. If a settlement cannot be reached, then the divorce proceeds to trial.
STEP 4: What happens in the divorce trial.
Once in the divorce courtroom, each party’s lawyer makes the case for what his or her client is entitled to.Arguments for both sides are presented, as evidence, depositions or witness testimony. The divorce process, especially when the marriage dissolution is strenuously contested, can often last for a year a more. Remember that if a court has required you to do certain things as part of the divorce settlement, the court can check to make certain those things have been done — and can hold you in contempt if they are not. This can become particularly sticky in custody cases — as in the recent case involving actress Britney Spears, for example.
STEP 5: Appealing the court’s decisions.
After the divorce is granted, either party has the right to appeal. An appellate court’s focus is not the original court’s conclusions, but whether the trial judge made a legal error that affected the outcome.An appeal can substantially lengthen, often by years, the time it takes for a divorce to be finalized. Because of that time factor, many of the issues and circumstances may have significantly changed by the time the case is sent back to the original jurisdiction for rehearing. In such cases, this essentially means a brand new beginning of the divorce case.