If you are reading this blog post, it may be because you have reached a point in your life where you feel that your marriage is broken beyond repair. You have tried every avenue you can think of to save your marriage, but you have reached the conclusion that it is in your best interests to move on with your life in a new and different direction. Simply put, there are irreconcilable differences between you and your spouse.
This initial realization often comes with a sense of anxiety, apprehension and fear of the unknown. You may feel your life has been upended and worry about what the future will bring. You may even feel a bit uneasy about taking the first step. But rest assured that you are not alone. One of the most important things you can do is to rely on your support system, whether it be family or friends, ecclesiastical leaders, counselors, or others that can lend emotional support to you in this momentous process in your life.
Each divorce case is unique, but there are certain things that are fairly common to most cases. Understanding the process can help bring a sense of peace and assurance that you can handle the emotionally difficult process that is in front of you. So, from a legal perspective, what is that process?
First of all, you may have heard that a divorce can either be contested or uncontested. Your initial thought may be that if you can find a way to do an uncontested divorce, that is what you want. Divorce can be messy, you might think. It may surprise you to know that, while most divorces are contested, this does not necessarily mean they cannot be amicable.
The definition of a contested divorce is one in which the parties disagree on one or more aspects of how the divorce should play out. This is not an unusual situation because, after all, irreconcilable differences between you and your spouse have arisen which make continuation of the marital relationship impossible or undesirable. So, try not to worry if you and your spouse do not see eye to eye on every detail of the divorce. This is natural.
My recommendation is that one of your first steps should be searching for a divorce lawyer near you; one you feel comfortable with. This may take several phone calls and every more than one in person meeting in a lawyer’s office. This is your life, and you want a lawyer that can work well with your personality and understands the issues in your case and the things that are most important to you.
Once you have decided upon your lawyer, he or she will help you understand the process in a similar way to this blog post. With your help, they will draft an initial divorce pleading. A pleading is a legal document that is filed with the Court that initiates the divorce or responds to a document that initiates the divorce.
One spouse or the other initiates the divorce by means of filing with the Court a petition or a complaint for divorce. The petition is filed by your attorney in the district or venue in which you reside. Oftentimes, there is a residency requirement for how long you must have lived in a particular county in order to file for divorce that county.
In the petition, you will outline in detail what you believe the Court should implement in order to make your divorce match your wants and needs. Understand that you may or may not ultimately get everything you ideally want in your divorce. This is because divorce is a process that often requires compromise and negotiation. More on that later. If your divorce eventually needs to be decided by a Judge, he or she will need to decide the case fairly and impartially. This may mean that some of what you want is implemented, but also that some of the things that your divorcing spouse wants is also implemented.
The objective of your lawyer’s advocacy is to help you achieve as many of your goals as is humanly possible. Advocacy skills include many things, but an understanding of the divorce laws and rules in your jurisdiction is indispensable. Your lawyer will help you understand how these laws work and how they apply to your case. Don’t be afraid to ask your lawyer to explain things to you, or even repeat them if you do not understand. Effective two-way communication is essential to a good working relationship with your lawyer.
Once a divorce petition has been filed, it needs to be served on the other party. If you have filed the petition, then you are usually called either the petitioner or the plaintiff. Service of the divorce petition needs to be made upon the respondent, or the defendant. This is usually done by using a professional process server who charges a reasonable fee for personally handing to the respondent a copy of the divorce petition, along with a Summons which states that they have a certain amount of time in which to file an Answer, or they will be in default.
For the sake of convenience, I will call the spouse receiving the divorce petition the respondent. The respondent needs to make sure to file a timely response to the petition within the time limit set out in the Summons. This response will often take the form of an answer and counter petition. The respondent will respond to each numbered paragraph in the petition, stating whether they agree or disagree with that paragraph. The respondent will also typically make a counter petition of their own, stating how they want the Court to decide on each aspect of the case.
After the answer and counter petition has been filed, the petitioner files a reply to the counter petition.
At this point the initial pleadings of the case are complete. What happens next is that the petitioner sends to the respondent their “initial disclosure.” Initial disclosures include: a list of potential witnesses and a brief summary of their testimony and how it is relevant to the divorce, and any documents or exhibits that are relevant to the divorce. This usually includes financial disclosures, such as a disclosure of assets, income, debts and obligations that are in both parties’ names, or in each parties’ individual name. The respondent then has a certain period of time in which to get the petitioner his or her initial disclosures.
After the exchange of initial disclosures, there is a process known in legal parlance as “discovery.” This is basically the information gathering stage of the case. If either party needs information that is exclusively in the other parties’ possession, they can send that party interrogatories, which are written questions that must be answered in writing under oath. They can send requests for production of documents that are in the sole possession of the other party. They can take the other party’s deposition, which is their testimony under oath as transcribed by a court reporter.
The discovery process may also include obtaining and developing expert opinions. If there is a business that needs to be valued, a certified business appraiser or forensic CPA may be employed. If a house needs to be valued, a certified real estate appraiser may be needed. Sometimes if custody of children is in dispute, there may need to be a custody evaluator or child psychologist who can give the Court a comprehensive opinion on the children’s best interests. But experts are not always necessary, and in fact, in the average case, with the exception of a certified real estate appraiser to value the marital home, they may not be cost effective. This is a decision you can make in consultation with your qualified legal counsel.
At some point in this process, often when discovery has been completed, a mediation may be desirable. In some states, a good faith attempt to resolve the divorce by mediation may be required before the divorce can proceed to trial.
Mediation is a process in which the parties and their attorneys attempt to reach a global agreement on all aspects of the divorce. A qualified mediator is someone who is trained to help people resolve legal disputes without court intervention. They are typically well-versed in the area of the law in which they mediate disputes. They are strictly neutral and do not favor one party over another. Oftentimes, the mediator will have the parties and their attorneys sit in separate rooms while they shuttle back and forth conveying offers and counteroffers. A mediator is bound by ethical rules that protect the parties’ confidentiality. Mediators cannot be subpoenaed into court to testify because the mediation process is strictly confidential.
If you have made a good faith attempt at mediation but still cannot reach an agreement with your spouse on all aspects of the divorce, then the case will proceed to trial. Oftentimes the Court will schedule a pre-trial to determine which issues are agreed upon and which issues must be presented for trial. The parties will then exchange witness lists and proposed exhibits, as the Law Office of Melvin A. Cook explains. Your attorney will help you prepare your testimony for trial.
Although this post is intended as a simple thumbnail sketch of the entire divorce process, there are obviously many nuances that may arise in your individual case. You should not hesitate to ask your attorney pointed questions to help you gain an understanding of any issues for which you need more information.
This material should not be construed as legal advice for any particular fact situation but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.