If you and your spouse have decided to divorce, your life is a whirlwind. What do you do now? Where do you go? What’s going to happen?
The details of the divorce process will vary from state to state and even from county to county. Each court has certain filing requirements, scheduling hoops and sometimes classes to complete. But the basic procedure will be quite similar in every family law court.
The actual divorce case begins with the filing of a divorce (or dissolution) petition. The “petition for dissolution” is filed by one spouse (now called the petitioner) and must be served on the other spouse. The petition is filed in a state court in the county where one of you resides. The petition is a pretty “dry” document, basically outlining some general information for the court – including the names of each spouse and each child and indicating very generally whether there are marital property, non-marital property, child custody, child support or spousal support issues. There are not usually any titillating allegations contained in most divorce petitions because most states now offer “no-fault” divorces. In “at-fault” divorce states, you might expect to see some accusations of wrongdoing in a petition.
If you and your spouse agree on settlement terms or if you have a simple, straightforward case, you can even file the petition pro se – or without an attorney. Divorce forms are available for use in uncomplicated cases. You will need to thoughtfully consider whether or not a “do-it-yourself” divorce will be right for you. Otherwise, you will need the assistance of an attorney to guide you through the process.
In some jurisdictions, the petitioner will also have the opportunity to obtain temporary, ex parte orders at the time of filing relating to possession of the marital home, custody of the children and payment of temporary support. In other jurisdictions, these temporary orders are more difficult to obtain and may require a hearing or a negotiated consent from your estranged spouse before they are entered.
The petition (and any temporary orders that may have been issued) must then be served on the other spouse. “Service of process” can be waived if the non-filing spouse signs an acknowledgement that he or she received the paperwork. If the spouse refuses to waive service or is proving hard to locate, you can ask the sheriff’s department or a private process server to track down your spouse and personally deliver the petition to him or her. Ifyour spouse is missing, there are other service options available to you.
After your spouse (now called the respondent) is served, he or she will have somewhere between 20 and 30 days to file a formal response to the petition. Once service has been achieved, most states have automatic restraining orders which kick in. These prohibit the divorcing spouses from removing their children from the state without mutual agreement or court permission, from canceling any life or health insurance coverage and from selling, borrowing against or moving any assets (other than what is required to live regular daily life).
The respondent’s response is basically a formality. He or she can also file a counterpetition for divorce along with the response. If no response is filed within the prescribed amount of time, the respondent is in default and judgment can be entered against him or her without further notice. When default judgment is entered, the petitioner generally gets a judgment which contains only provisions that he or she requests or approves.
The next step in most divorces is an exchange of information and documents regarding the couple’s assets (marital and non-marital), liabilities, income and expenses. Sometimes, people are able to negotiate a settlement at this point in the process. If the spouses can agree on the terms of the divorce, they would then sign a written settlement agreement and submit it with a consent judgment for the court’s approval. The divorce will then be granted.
If no settlement is forthcoming after this initial exchange of financial information, the case proceeds with discovery. Discovery is a more formal investigation into whatever issues may exist. Written questions called interrogatories will be submitted to each side by the opposing attorney. These questions must be answered under oath and can relate to any of a variety of issues. Written requests for the production of documents may also be submitted, seeking not only financial documents, but also things like diaries, calendars, photographs, audiotapes and safe-deposit box contents – it all depends on the contested issues in your particular situation.
Another aspect of discovery can be depositions, which is a process where the attorneys interview the parties and other witnesses under oath. The testimony is recorded by a court reporter. Depositions are used as investigative tools, as intimidation, as trial preparation and as settlement instigators. Divorce depositions can be quite ugly.
If the case still isn’t settled, the court can also order the parties to participate in mediation to try to resolve their issues. Other matters which can arise in a divorce case include custody evaluations, psychological evaluations, motions to compel parties to answer discovery, motions to modify temporary orders, motions regarding payment of bills and motions to sell real estate.
Typically a small percentage of cases go to trial. But if a divorce case does go to trial it will be before a judge only. Most states do not have jury trials in divorce cases (although a few states have advisory juries for such trials). The parties will testify under oath. Other witnesses including expert financial and/or child custody witnesses may also testify. Documents are submitted to the court for review and consideration. This could take two hours or two months, depending on the case. At the end of the testimony, the judge will either give his decision and render a judgment from the bench or he will take everything under consideration so that he can review the documents and his notes before making a decision.
Obviously, the longer a divorce case goes on, the higher the cost – both financially and emotionally.