Divorce can be a challenging process. Aside from the emotional stress of ending a marriage, there are usually a number of legal issues that must be resolved during the process.
The legal issues in a divorce may include the following:
Also, another related issue is that of whether divorce alternatives are an option. For instance, a couple may choose to file for an annulment or a legal separation under the appropriate circumstances.
Of course, not all divorces involve all issues. Some spouses may not have debts and others may not have accumulated much property, e.g. they may not own a house, which can simplify the divorce. Every couple’s situation is unique.
How Are Divorce Issues Resolved?
Most divorce issues are brought up at the beginning of the divorce, sometimes before court proceedings even begin. These issues are assessed by the judge during the divorce process, which may or may not include a trial, if there is one. Most cases are resolved without a trial, because the parties can agree on a settlement. Or, the trial may only deal with one or two issues as the parties resolve the other issues through a settlement agreement.
Assuming that at least one of the spouses in a marriage knows that they would like a divorce, the process begins with a divorce petition. In most states, the divorce petition is formally known as a “petition for dissolution of a marriage.” One of the spouses, or their attorney, prepares the petition, files it in the appropriate court and then serves it on the other spouse.
In all states today, forms to petition for the dissolution of a marriage are available in the local family court, which is the court in which divorces are filed and processed. In most states, the forms can probably be accessed online at the family court’s website.
The petition should be filed in the family court in the county where one of the spouses resides. It does not have to be filed in the place where the marriage took place. The petition includes important information regarding the marriage, the parties and their family situation. It names the spouses and any children of the marriage. It may list the property of the marriage and whether it is separate property or community property.
The spouse who files the petition may request sole custody of a child or children of the marriage or joint custody. And then the petitioner would request child support and/or spousal support if they believe they are entitled to receive one or both.
The other spouse then has a limited period of time, usually 30 days, in which to file and serve their answer to the petition. In their answer, the other spouse states whether they agree or disagree with the requests in the petition. As the dissolution continues, the petitioner may need to file a more detailed complaint, explaining exactly what they are asking for and why.
In some cases, the judge may order the parties to participate in an alternative dispute resolution process, especially if the spouses are willing to work together to resolve any differences. Some of the processes available are mediation, arbitration, collaborative divorce, and even informal negotiation through the parties’ attorneys. Any of these can work in certain situations. In fact, many lawyers strongly urge their clients to engage in an alternative dispute resolution process.
Among the advantages are the following:
- It can help divorcing spouses maintain an amicable relationship;
- It protects the privacy of the parties, unlike a divorce, which is a public proceeding;
- It leads to less spending on court and attorney’s fees, although there can be expenses associated with dispute resolution;
- The parties maintain control of the outcome of their divorce as opposed to turning over final decisions to a judge;
- The process can be speedier than resolution through court processes;
- It helps the parties avoid open animosity of the type that can have a negative impact on children.
After completing an alternative dispute resolution process, the parties may propose an agreement on major issues such as alimony, child custody, and the rest. The results may then be submitted to the court, and the judge may convert the agreement into a final judgment.
If the parties are not able to reach an agreement on all issues, the judge is then required to determine final rulings on the issues that have not been resolved. The judge would do this after a trial on all outstanding issues. Of course, at a trial, the parties have the opportunity to present evidence to the court. Then they, or their attorneys, present arguments addressing the law that should apply and, if it is applied as they recommend, how the judge should rule on the issues.
The judge might prescribe a plan for child custody and a visitation schedule, division of property, whether spousal and child support must be paid by one spouse to the other and if so, in what amount. This is done using an analysis of all the available facts in light of the applicable state law applicable to the case. At the conclusion of the trial, the judge issues a final order or decree of divorce.
Can Divorce Issues Be Appealed?
A judge’s final decree of divorce can be appealed if there are grounds for appeal. That would depend on the facts and the nature of the rulings that the judge has made in the final decree. For example, if the court made an error in applying the law to the relevant factors that the court should consider in deciding on the issue of spousal support, it may be possible to appeal the final divorce order.
Appeals are not automatic. One of the parties to the divorce must initiate an appeal by filing a notice of appeal and serving it on the opposing party. Both parties then submit briefs to the appellate court stating their arguments on the issue or issues that are being appealed. The appellate court then issues its ruling.
Generally appellate courts give great deference to the judge who has issued the final decree. So, appeals are rarely successful. However, it is not impossible to succeed with an appeal.
If both spouses agreed to the terms of a settlement and the judge’s final decree incorporates the settlement to which the parties agree, then the final decree cannot be overturned on appeal unless there is a dispute regarding how the agreement came about.
If an appeal is not indicated by the circumstances, it is sometimes possible to have an order regarding child custody and visitation or the payment of spousal support or child support modified, if circumstances change. The party that wants a change would have to petition the court that issued the order for a modification. This may be an option for spousal support under special circumstances that suggest that a spousal support order needs to change.
For example, the spouse who receives spousal support may pass away, so the support no longer needs to be paid. Or one parent may want to move and change visitation arrangements. These are the types of changes in the life circumstances of the former spouses that can lead one or the other to request modification of a divorce decree.
Do I Need a Lawyer for Help with Divorce Issues?
Divorce proceedings can be stressful and you may want an attorney to represent you, in part to ensure that your rights and interests are protected while you may not be at your best. You may want to consult with a divorce lawyer in your area if you need help filing a petition for dissolution or responding to one.
Or, if you have reached the end of a divorce process and are not satisfied with the final order, you may want an opinion as to whether an appeal could help you. Your attorney will be available to represent you during the proceedings, and can help you understand how the law in your state might affect your case. In either case, an attorney can give you valuable guidance on how to proceed.
