The Divorce Process: A Step by Step Guide

The Divorce Process: A Complete Step-By-Step Guide

When factors in the home make divorce the best option for everyone involved, the stages of how to obtain a divorce will vary by state. Generally, however, the process begins when one spouse, called the petitioner, files for divorce. Papers are served to the other spouse, who is named the respondent thereafter on all official documents.

This article will outline the key elements of ending a divorce, such as answering the divorce petition, temporary hearing protocol and mediation services. Each action in a divorce must be carried out at the right time within the sequence of the process. While many divorces are resolved without a trial, some couples have to appear in court or even go through an appeals process.

The length of time that it takes to process a divorce case depends significantly on the state and local area in which it is filed. If the court that will hear your case has a crowded docket, it may take a year or longer for it to go to trial.

Determining Jurisdiction in Divorce Cases

State courts have jurisdiction over divorce cases, so divorce complaints are filed with district or county branches of state superior or circuit courts. In highly populated areas with very busy court systems, divorce cases may be handled by special family court or civil divisions. The easiest way to determine where your case should be filed is by using a filing court locator.

Jurisdiction in a divorce case is generally based on the residency of the party that files and serves the divorce petition first. If both parties reside in the same area, there will be no question about where the case will be handled. If there are two possible jurisdictions, though, it’s in the filer’s best interests to act quickly so that the matter is heard in his or her jurisdiction.

Most states have strict rules regarding residency. Most commonly, the person filing the petition must have lived in the state for at least 180 days. Some states, including Alaska, Washington and South Dakota, have no residency requirements on the books. Others, like New Jersey, Iowa and Massachusetts, require the petitioner to have lived in the state for at least 12 months prior to filing.

Because divorce complaints are handled by county or district branches of state courts, there are usually local or county residency requirements as well. To avoid complications, check with the court where you will be filing your divorce petition to find out about residency requirements first. This is especially important if you have only resided in your county or area for a short period of time.

Serving the Divorce Summons and Petition

The first step in the divorce process is typically to file a petition for divorce or legal separation. The petition should also include a summons that must be simultaneously served to the other party. The summons essentially informs the other party that a divorce petition has been filed and that the divorce or separation process has officially begun. In most states, receipt of the summons means that from that point forward, neither party may dispose of marital assets or otherwise modify significant holdings. The petition for the dissolution of the marriage is also included with the summons.

In most states, the summons and petition for divorce or separation must be served to the other party or someone of an adequate age and maturity level who lives in the same household. However, the petitioner, or other party, is usually barred from serving the summons. The summons and petition must be legally delivered according to the state’s requirements for the process to move forward without interruption.

What’s Included in a Divorce Petition?

There are two parts to a standard divorce petition. The first part outlines basic facts about the involved parties and their marriage, including:

  • Names, ages and other identifying information about the involved parties
  • Names, ages and other identifying information of children from the marriage
  • Assets and debts that have accrued during the course of the marriage
  • Date and location of the marriage
  • Acknowledgement that the petitioner has lived in the state or local area for the required period of time

The second part of the divorce petition outlines the kinds of relief that the filing party is seeking. Typical types of relief that are sought include child support, spousal support, division of assets and debts and custody of minor children. In most cases, the petitioner seeks the maximum amount of relief possible because it is expected for the other party to counter-petition with demands of his or her own.

The divorce petition should also include the reasons or grounds for seeking the dissolution of the marriage. Most often, irreconcilable differences are cited, and the matter is treated as a no-fault divorce. However, if a specific event has prompted the petitioner to seek divorce, it may be outlined in the petition.

Answering the Divorce Petition

When you are served a petition for divorce, you are being sued. As with any type of lawsuit, you have a specific period of time during which you may respond. In most jurisdictions, the respondent, or defendant, has 30 days to respond. Failure to respond prior to the deadline may result in a default judgment, which means that the original party may be able to seek relief without opposition or get precisely what he or she wants. Many courts are willing to accept late responses, but it is best to obey the deadlines to avoid losing the right to argue your case later.

The typical divorce counter-petition begins with an acknowledgement or the receipt of the divorce petition. It then goes on to state whether or not the respondent agrees with the types of relief that are being sought by the plaintiff. The respondent can agree to all of the terms. He or she can also address each request on a point-by-point basis. Most commonly, this is handled through the use of a standard response form that has check boxes next to each of the petitioner’s requests.

In a counter-petition, the respondent admits or denies the allegations that were outlined in the petition for divorce. This is where the check boxes come into play. Next to each allegation, the respondent checks the box to either agree or disagree. Space is also included for detailed explanations to each response. For example, the counter-petition may include language like, “The allegations in paragraph three of the divorce petition are denied.” The respondent can then clearly explain his or her reasons for denying the allegations.

The counter-petition is the respondent’s opportunity to not only agree with or deny the original allegations but to outline his or her own requests for relief.

Temporary Hearings Provide Temporary Resolution

When two people initiate divorce proceedings, they face several weeks or months of waiting before receiving a decree. Meanwhile, financial concerns and issues relating to children require quicker decisions. A temporary hearing, also known as a pendente lite hearing, is a means of obtaining legal decisions on several issues while the divorce settlement is pending, such as:

  • Temporary child custody and visitation schedule
  • Temporary child support
  • Temporary spousal maintenance
  • Interim housing
  • Temporary protection from harassment/domestic violence
  • Regulation of interim spending
  • Temporary division of household bills
  • Orders for possession and retention of assets

By filling out the appropriate family court forms, either party to the case can seek these types of court orders. Each form typically requires a written declaration that states why the judge should grant the relief requested. At the temporary order hearing, the judge will review the paperwork and ask questions prior to making a ruling.

Requesting temporary support payments, whether for children or a spouse, requires financial documentation. Most jurisdictions have specific financial forms for this purpose. If the judge needs additional information, he or she may schedule a subsequent hearing to decide an issue.

Mediation Simplifies the Divorce Process

Couples who successfully complete mediation avoid the courtroom, saving themselves time and money. In fact, some family court systems mandate mediation prior to setting a trial date. A trained mediator works with the parties to find acceptable resolutions. The mediator does not take sides. What people say during is not admissible in court, so it is a non-threatening environment. The roles of the mediator are facilitating communication, clarifying misunderstandings and bringing couples to mutual agreement on divisive issues.

Most states also require mediation for couples who disagree over child custody. This is especially beneficial to families because mediation eliminates the need for prolonged litigation that adds stress to children’s lives. By resolving child-centered disagreements in mediation, both parties get off to a better start as co-parents.

Co-Parenting Classes Benefit Children

Many family courts require divorcing couples with children to complete co-parenting classes. The primary purpose of these classes is helping parents to minimize the damaging effects of divorce on their children. They teach parents valuable skills such as putting the needs of their children above their own and working together to ensure that positive parenting remains a constant in their children’s lives.

Advanced Case Review and Management Order

In states that require it, an advanced case review is the couple’s first official opportunity to discuss those issues arising from their decision to divorce. An advanced case review is also called an early case resolution hearing or a case management conference. Typically, the parties and their attorneys appear before a judge to outline a plan of action for the divorce process. The attorneys update the judge on the status of the proceedings, and the judge can schedule various motions and further conferences as needed.

Sometimes, couples confirm that they are willing to collaborate on a settlement during the advanced case review, and the judge may send them directly to mediation. In other cases, the judge issues a Case Management Order that stipulates a schedule for initiating the discovery phase of the divorce case.

Discovery: Getting the Facts

During discovery, clients exchange information that is necessary to working out the issues in a voluntary or a court-mandated settlement. Discovery can be an informal process in which both sides freely provide each other with the necessary facts and figures or a formal matter requiring the submission of legal questionnaires, supporting documents or testimony under oath. During discovery, attorneys speak with witnesses and, if necessary, take their depositions.

Interrogatories are another method of discovery. One party submits written questions to the other party, requiring written answers by a specific deadline. These responses must be true, or they are subject to the same penalties as perjury. An attorney may also ask for documentation, such as pay stubs, from the opposing party, and he or she must supply it, if available, by the stated deadline. To obtain a document from a third party such as the IRS, the attorney must provide the opposition with a release form to sign that allows access to the information.

Consequences of Failure to Provide Discovery

If one side in the case fails to provide requested information during discovery, the opposing side can file a motion to compel a response. This alerts the judge that one side is uncooperative, perhaps influencing later court rulings. Further consequences of noncompliance with discovery requests include:

  • Temporary spousal maintenance
  • Imposition of attorney’s fees
  • Exclusion of evidence and denial of the right to contest on the discovery issue
  • Presumption of fraud or perjury on that matter
  • Contempt of court


Interrogatories: Addressing Unanswered Questions

During the discovery process, one spouse may submit a list of questions – an interrogatory – to the other in order to verify the grounds for his or her demands as well as his or her account of the facts of the case. While the other spouse must respond under oath as in a deposition, responses to interrogatories are generally more meticulously prepared since the respondent’s attorney will likely assist with them. The questions one may ask in an interrogatory can be culled from a form containing standard queries about matters such as taxable income or the value of particular assets, for instance, or they could be case-specific.

Most jurisdictions limit the number of questions to keep them focused without further court consent, and the respondent’s counsel may object to vague or impertinent questions, so it is a good idea to draft them carefully while working closely with your lawyer.

Document Requests: Getting the Facts in Order

During the discovery part of divorce proceedings, it is common for one spouse to request that the other produces important documents that could help the requesting party and his or her attorney decide how to proceed with complex issues like child support and custody, alimony and asset division as well as help eliminate the possibility that the other spouse is hiding assets. These important documents may include credit card and bank statements, tax returns and loan applications.

As with other formal requests during the discovery process, there will usually be a time limit, typically about a month, by which the respondent may furnish the documents requested, but he or she may choose not to provide them if they are difficult to obtain. If this happens, the attorney representing the spouse making the request might still be able to secure them through other means, such as a release of information form or a subpoena.

Releases of Information: Going Straight to the Source

When the other spouse is unable, due to accessibility limitations or other reasons, to comply with a document request, the attorney representing the spouse who is seeking these documents could send a release of information form to the other spouse. With this form, the attorney may obtain the requested documents from the third party, such as an employer, medical facility or financial institution, that generated the documents in the first place.

Requests for Admissions: Useful Tools for Verifying the Facts

Rarely used in divorce cases but nevertheless useful, these special queries ask the responding party to affirm – that is, make an admission – or deny specific facts relating to the divorce proceedings. As with interrogatories, a response to a formal request for admission must be provided under oath and within a set time period; penalties may be incurred for a late or false response or for failing to respond altogether.

Depositions

An oral deposition is a more exhaustive means of discovery in which an individual with information pertinent to the divorce case is issued a subpoena and must appear before a court reporter to answer questions posed by the attorney representing one of the spouses. The person who is deposed could be the other spouse or even a third party who is not directly involved in the case but may nevertheless offer useful information, and he or she must respond to the attorney’s queries under oath – lying could result in a charge of perjury.

Depositions are useful for many reasons. They could be used to apply pressure to a spouse suspected of lying about assets, for example, if used after important documents have been obtained through document production requests or other forms of discovery since the attorney could then ask questions designed to clarify any unclear or suspicious findings in these documents such as transfers of funds or unidentified large purchases or withdrawals. As a “practice” trial, a deposition could also be useful for gaining insight into how prepared the other spouse is to appear before a judge and jury if the divorce is likely to go to trial. Depositions can range in duration from an hour to several days or even more than a week.

Experts

In some divorce cases, the testimony of a professional in one particular field may be required to help the case arrive at a resolution if certain facts are disputed or require clarity. Experts may be retained jointly – that is, agreed upon by both parties – or separately, which is more costly but unavoidable if both spouses disagree on the facts of the case that the expert is set to testify on, so each side may then appoint a separate expert to testify on the same issue. Experts could also be court-appointed. Regardless of who retained them, however, their opinions are considered reliable testimony by the court.

The type of experts needed in a divorce case depends on the matter of dispute. If child support or alimony is at issue, a vocational expert could be summoned to evaluate a spouse’s earning potential if he or she has been out of the workforce for some time, or a financial expert could clarify complex matters pertaining to a spouse’s projected income.

If the divorcing spouses disagree about the value of real property such as the marital home, a real property appraiser could testify regarding its value while taking into account special renovations made to it or unique features that require a nuanced evaluation. In a similar vein, a business valuation expert could testify as to the worth of a business venture and help sort out which assets and debts are considered marital property and which are to be retained by one spouse as separate property.

A child custody evaluator could be consulted in a child support dispute to provide a neutral third-party analysis of the divorcing parents’ relationships with their children and the effect of the divorce on that relationship. The evaluator may use this analysis to make a custody recommendation before the court.

Out of Court Settlement

Both parties in a divorce can avoid going to court by agreeing to a settlement at any time previous to their court date. Most couples reach a settlement either through mediation with a professional mediator, attorney-led negotiations or some other form of arbitration.

Some of the issues that divorce settlements typically address include:

  • Child custody, if applicable
  • Child visitation, if applicable
  • Property division
  • Division of debt
  • Child support and/or spousal maintenance

Once those involved reach a consensus on all relevant legal issues, one of the attorneys will draft the settlement for approval and signatures. The family court judge then reviews the settlement and holds an informal hearing to make sure that each party to the divorce fully understands and consents to the terms of the agreement. Should the judge deem that the settlement is equitable to both spouses, he or she will approve the document and generate a divorce decree.

Partial Settlement Prior to Trial

Sometimes, spouses and their attorneys are unable to agree on all of the necessary decisions in a divorce. In this case, they can submit a partial settlement to the judge and go to trial to resolve the remaining issues.

The Divorce Trial

Only a small percentage of divorce cases proceed beyond settlement and go to trial. Depending on the couple’s state of residence, a divorce case may be decided by a judge or it may involve a jury. After opening statements, the attorney for the moving party, also known as the plaintiff or petitioner, presents evidence and testimony. Any witnesses for the petitioner are subject to cross-examination by the respondent’s attorney. The respondent’s counsel then has the opportunity to present evidence and witnesses, and the petitioning lawyer may cross-examine them. At the conclusion of the divorce trial, the attorneys present their closing statements. The judge or jury makes a ruling, and the court issues a divorce decree.

The Divorce Appeals Process

If someone finds the rulings in the divorce to be unsatisfactory, the objecting party has the right to appeal. Different jurisdictions impose specific time limits on appeals, and the client should discuss it with an attorney as soon as possible following the trial. Only rarely does an appellate court elect to overturn the judge’s ruling.

The attorney must file the appropriate paperwork for an appeal, which includes a brief. The brief is a written argument for overturning the divorce decision. It references pertinent case law and statutes that support the attorney’s argument. The lawyer for the opposing party in the divorce also files a brief that provides legal support for the original court ruling.

In some cases, attorneys make oral arguments as well. The appellate court considers these oral arguments, the briefs and the written record of the original trial when making a decision. The written trial record carries particular importance in the outcome of the appeal.

Settlement issues to which both parties agreed prior to trial are not eligible for appeal. However, certain issues are open to modification.

Modification of the Divorce Decree

A judge has the authority to modify specific aspects of a divorce ruling when circumstances affecting these issues have undergone significant changes. Because modifications may favor one party over another, they require a court hearing to determine their validity. The petitioner’s attorney must file a motion to modify the decree in the court that first made the ruling. The following issues are among those that may merit modification:

  • Child custody
  • Child visitation schedule
  • Child support
  • Spousal maintenance

Major life changes are likely to affect an existing child custody order. The children in question may have reached an age when they wish to have a voice in their custody arrangements. The custodial parent may have emergent health issues that make him or her unable to maintain sole custody. While parents can privately agree to custody modifications, many couples prefer obtaining court approval to avoid future disagreements.

The child visitation schedule originally ordered by the divorce court may become difficult to follow as family circumstances change. For instance, when one parent decides to move out of the area, adjustments in visitation become necessary.

As both parties progress in their careers, the balance of child support responsibility is likely to shift. Also, the need for spousal maintenance payments may increase or disappear, depending on the couple’s economic circumstances. Obtaining a court order for changes in support is essential to avoid the possibility of future litigation.

Enforcement of the Divorce Decree

The judge’s rulings in a divorce decree are legally enforceable. For example, if one parent repeatedly violates child visitation mandates by returning the children to their home hours beyond their allotted time, the custodial parent can file a motion of contempt to force the offending party into compliance. If one party fails to repay a marital debt as stipulated by a judge, the other party can file a motion of contempt.

During the hearing, the judge considers the documentation and testimony of both sides to determine whether the defendant has violated the divorce decree. If the ruling confirms contempt of court, the judge issues orders that compel the defendant to rectify the violation within a specific time frame. If the defendant fails to do so, he or she may face jail time.

While taking legal action to ensure that the other party follows the terms of the divorce is an added expense, it is a definitive means of removing sources of conflict. It is also a way to protect the legal rights of the petitioner and the affected children.

Conclusion

Many couples that start the divorce process wonder how long it will take to reach a conclusion. Although it’s hard to determine the time that will be needed for a divorce, it is safe to say it will take longer when there are contested issues. In Oklahoma, for example, a divorce is possible in 10 days as long as all issues are agreed upon and the couple has no children. In other states, such as Louisiana, a divorce will take at least six months.

The state laws that apply in each situation will dictate, to some degree, the procedures that need to be followed. Couples that are divorcing will be best served by gaining reliable information on all aspects of their situation to be better equipped to make sound decisions.

To further understand what options are available in your circumstances, call to speak with a local divorce attorney.


adminThe Divorce Process: A Complete Step-By-Step Guide