Divorce or dissolution of marriage may be defined as a decree by a court that a valid marriage no longer exists. It leaves both parties free to remarry. The court may divide property and order spousal support, and, if children are involved, grant custody and child support.
It is important to note that not all states handle divorce the same way. Some states permit a divorce order to be entered and then have you work out the other issues later and others require that everything be resolved before a divorce can be granted.
What are the First Steps in Starting The Divorce Process?
Whether the attorney you select has represented you previously or has been recommended by a friend, relative, or bar association lawyer referral service, the main aspect is that you communicate well with each other. It is important that you have confidence in his or her ability to handle your case.
Moreover, what you speak with your lawyer is considered “privileged information.” This typically means that what you tell your attorney must be held in confidence unless you give permission otherwise.
In addition, your attorney has the duty to:
- Allow you to make the major decisions in your case, such as contesting custody or accepting a settlement for alimony;
- Remain open and honest with you in all aspects of your case, including your chances of success, the positives, and negatives of your position; and
- Include estimating the time frame and fee required.
What is the Process of Divorce?
The divorce may proceed in one of three ways:
- Default: This means your spouse does not answer, respond or in any way contest the divorce or other related matters such as child custody, support, alimony, or division of property and debts. Meaning, if your attorney does not hear anything from your spouse, a divorce can be granted and you can receive what you have demanded in your complaint on your testimony alone;
- Stipulation: Where the parties can agree on the custody of the children, division of property and debts, child support, and alimony, a written agreement called a “stipulation” is prepared and signed by both parties. The stipulation is presented to the court for the judge’s approval and you are bound by it; and
- Contested: If your spouse has filed a formal answer and does not agree to the divorce, showing there is a dispute on such matters as custody, child support, or division of property and debts, a trial will be held. The judge will decide these matters based on evidence, including the testimony of both parties and other witnesses. The court will decide on all issues not previously agreed to by the parties.
Furthermore, divorce can become a complex legal process. Each state has its guidelines regarding obtaining a divorce, but most follow the order listed below.
The form that officially begins the process is the divorce or petition. This legal document sets out the reason why one of the parties is pursuing a divorce and also establishes that one or both of the parties meets the requisite residency requirement. A summons may also be necessary. The actual court where the case has been filed may mandate that specific forms be filed with the court.
Moreover, a process server or other qualified individual serves the other spouse with the papers that the complaining party filed with the court. The party who was served has a specific timeframe in which to provide an answer to the complaint, such as 30 days.
Either at the same time as filing the other forms with the court or within a time frame provided by the court, the complaining party may be required to complete certain documents about their financial information and file them with the court. These forms often disclose information about the spouses’ assets, debts, income, and tax returns. The other spouse may also be required to complete such disclosures.
Lastly, there is a discovery which is the process of gathering information about the other side in contemplation of litigation. In a divorce case, discovery may consist of inquiring with the other party questions about the assets that they possess, their parenting, and other issues related to the divorce.
What is Mediation?
Mediation does not happen in every case. However, some states mandate that the spouses first go through the process of mediation before they will hear the case in court. Mediation provides a way for the spouses to attempt to reach an agreement without court intervention with a neutral facilitator’s help.
At this stage, the spouses may agree to significant terms of the divorce. These issues can include decisions about child custody, visitation, child support, and spousal support. They may also create an agreement about the distribution of their assets. If there is an agreement, the spouses will present this agreement to a proposed judgment in the case.
Additionally, if the defendant did not provide an answer as required, the other party may have to wait a requisite period. Then, the complaining party may request a default judgment for all of the relief that he or she requested in the divorce complaint.
If the other party has provided an answer but the spouses are not able to reach an outside agreement, the case proceeds to trial. A court date will be set on the docket. You may have additional forms that you need to complete before your case is heard, such as requesting the judge to make orders concerning property or custody.
Furthermore, a judge is typically the trier of fact. He or she may be responsible for establishing that the spouses have met the grounds for divorce, which parent should be granted custody, the amount of child support, the amount of spousal support, and how the property should be divided. If the spouses agree on certain matters, the judge may include this agreement in the order and decide the rest of the case.
It is known that divorces can take a long time and individuals need some clarity while they wait. Therefore, they may have temporary hearings to establish such issues as who should have use of the marital home, with whom the children should reside, how much child support should be ordered, whether orders should be made to restrict certain financial transactions and whether one spouse should be required to pay for the other spouse’s legal fees.
Some jurisdictions also allow for a faster process to terminate the actual marriage while not fully deciding other issues involved in the marriage, such as financial considerations. In these types of cases, the court decides whether or not to end the marriage while other issues are still pending. Once the judge decides on a final decision regarding the divorce, the court clerk will mail it to each spouse with a file stamp on it.
When Do I Need to Contact a Lawyer?
Depending on which state you reside in, your divorce process will look different. To obtain more clarity on your situation, it is recommended to reach out to a local divorce lawyer to assist you further in your case. Your attorney can provide you with the advice, guidance, and representation needed to complete the entire process.
