Divorce-101: The Basics That You Should Know about the Legality of Breaking Up
Anytime a relationship breaks down, the emotional impact is significant. Arguably, the breakdown of a marriage is the most painful type — questions pop-up: Why did our marriage go bad? Did I do something wrong? Was there something I could have done differently? All too often, the pain the break-up creates turns to resentment and spite. The pain is going to be there. The divorce will not make the pain go away. Only time will heal the pain. Don’t rush the process, as there are no shortcuts for the emotions.
A marital dissolution is an adversarial proceeding. In other words, there are two sides in dispute with each other. The role played by the family law attorney is perplexing. On one hand, the attorney desires to resolve the dispute as quickly and as painlessly as possible for the client. On the other hand, the attorney must protect the client against being taken advantage of. At the very least, this is a delicate balancing act. Ultimately, however, the attorney has one responsibility — to protect the legal rights and entitlements of his or her client. Quite often the only way this can be done is to compromise the desired balance, even if it results in the case being conducted in a manner inconsistent with how the client had hoped it would happen.
The frame of mind of the spouses in a marital dissolution action can often be the most significant component of the entire case. If one or both persons bear(s) resentment or hostility to the other, any potential for efficiency that the case may have becomes susceptible to compromise. While the attorney can put forth a valiant effort to maintain control of the case, the effort usually succumbs to the client’s hostility. From this comes two certainties: first, the action is going to take longer to conclude; second, attorney’s fees are going to skyrocket, because more attorney time will be necessary.
Of course, if the emotions generated by the dissolution become too overwhelming to handle, the client may want to consider contacting a psychotherapist. The stress that a divorcing person is put through can be extreme. Utilizing the assistance of a psychiatrist, psychologist, or therapist should not be frowned upon or cause the client to suffer embarrassment. The experience may prove invaluable, not only in dealing with the problems at hand but also in getting on with life.
SAVE THE CHILDREN
It has been argued by divorcing persons that putting their spouse through a bitter dissolution actually provided satisfaction. Such a notion is probably nothing more than folly. Even if a husband and wife have come to hate each other, they should not disregard the best-interests of their children. What these spouses usually overlook is that such conflict, often times, results in substantial emotional harm to the children of the family. While the breakdown of a marriage may fuel resentment in the spouses, their animosity in no way justifies causing the children of the marriage to suffer also.
The manner in which the children can be caused to suffer can be straightforward and obvious, or it can be less noticeable. Frequently one spouse will attempt present the other spouse in a negative light, such that it is impossible for the children to perceive that parent any other way. Also, one parent may try to involve the children as his or her allies, hoping to gain some advantage over the other spouse. Or, the custodial parent may prevent the other parent from having any contact with the children — as a means of hurting that other spouse. Usually, it is the children who end up being hurt the most.
Again, do not overlook the possibility of consulting a psychotherapist: for yourself – to help you avoid improperly involving the children in the dissolution; or for the children — when they are unavoidably exposed to the trauma of marital dissolution.
THE ECONOMICS OF DISSOLUTION
One of the hardest pills for the participants in a dissolution to swallow is the cost. The principal drain on finances is the attorney. While it may be impossible to completely eliminate attorney’s fees, it is possible to keep them down. The key is cooperation. The more amicable the conduct between the spouses, the more likely the matter can be resolved quickly. The less time the attorney spends on the case, the less time the attorney bills for. By law, the spouses must deal fairly and in good faith with each other. It is much easier, and cheaper, to follow the law and bring the matter to a swift conclusion, then it is to pursue some unreasonable objective (i.e., vindication against the other spouse, attempting to come out of the matter better than the other spouse by hiding assets, etc.). The rules exist for a reason. Play by them!At some earlier point in time you and your spouse exercised the privilege of being adults by marrying the other; and you each committed yourselves to the responsibilities that go along with marriage. Don’t think that just because the marriage is ending, the responsibilities of being an adult are abolished. Each spouse voluntarily entered into the marriage, now each spouse must deal with its consequences. In the final analysis, if there are any problems that manifest themselves during the divorce, the ultimate cause can be pinpointed exactly — that being the point in time when the spouses got married.
THE DISSOLUTION PROCESS
A dissolution is litigation. It is two people, who have conflicting interests, entering the legal forum to have their disputes resolved. While no two cases are exactly the same, there are standard procedures that are followed in every case.
1. Commencing the dissolution action.
A dissolution action is started when one of the spouses files a petition, a summons, an income and expense declaration, and a schedule of assets and debts with the court. The petition is the document that requests of the court that the marriage be terminated. In the petition, the husband and wife take on new titles. The person who is first to have the petition prepared and filed is identified as the petitioner. The other (non-filing) spouse is identified as the respondent. The summons is the document that puts the other spouse on notice that the dissolution action has been started. The income and expense declaration is an involved document that contains a substantial amount of economic information pertinent to the person who is submitting it. The principal purpose of the document is to give the judge some idea of the financial circumstances of the parties, so that he or she can make adequate determinations of child support and/or spousal support. This first set of documents is conveniently referred to as the plaintiff’s moving papers.
2. Once the moving papers have been filed with the court, they must be served on the other spouse.Normally this happens within 30 days from the date that the petition is filed.
3. Many divorces go through uncontested.In an uncontested case, the client communicates the agreements the parties have arrived at to his or her attorney. The attorney then prepares all of the necessary paperwork, secures the required signatures, and mails the paperwork to the court for processing. The entire process can be completed in a few short weeks or months. Then it is simply a matter of waiting for the six-month waiting period (which starts on the date that the other spouse is served with the Summons and Petition) to run, and the divorce becomes final.
4. Next steps:If a divorce cannot be resolved as an uncontested matter, the steps that follow may come into play. Once the moving papers are served on the respondent, he/she has 30 days to respond to them. This response is accomplished through the completion of certain required paperwork. Usually, these responsive pleadings will include a response (which answers the allegations of the petitioner’s petition) and an income and expense declaration containing economic information pertinent to the respondent. With the filing of the responsive pleadings, the case is at issue (i.e. the case is in dispute, and ready to move on).
5. Discovery:Information and facts are critical to the effective resolution of a dissolution. While the bulk of the information each attorney has usually comes from his or her own client, other strategies for acquiring information do exist. The time for formal gathering of information from the other party begins once the case is at issue. There are formal procedures and devices intended to facilitate the fact gathering process. They include written questions, referred to as interrogatories; requests for documentation and other physical evidence, referred to as demands for production of documents and other tangible things; face to face interviews of the spouses by the opposing attorney, referred to as depositions”; as well as other less frequently used techniques.
6. Temporary relief:The completion of a dissolution action can, and usually does, require a substantial passage of time. However, in many cases, there is an immediate need for court orders. Examples include the need for restraining orders, child support, spousal support, etc. To help meet these immediate needs, there are procedures that can lead to temporary relief (i.e. temporary restraining orders, temporary support orders, that remain effective until the court has the time to issue more permanent orders). The document utilized to make these temporary requests to the court is usually entitled an order to show cause, or a notice of motion.
7. Trial:Most people, when they commence a legal action, assume that the matter will ultimately result in a court trial. The fact is that only a small percentage of cases actually result in a trial. The reasons for this are several. First and foremost is the shortage of courtrooms — there aren’t enough of them. As a consequence, the system has developed such that negotiation is expected and demanded by the courts. The policy is to resolve family law matters outside of the courtroom. Of course, if a settlement cannot be reached, the courtroom will be put to use; but the pressure to settle, that the court creates, is significant. Another reason is the cost of legal fees. Trial requires substantial attorney time — resulting in substantial fees and costs. The possibility of incurring sizeable attorney’s fees is usually adequate incentive for the spouses to settle their differences short of trial.
