People who are considering divorce may be curious about what the process entails. This article will outline many of the common steps in the divorce process, though whether a particular step is necessary in a given case will depend on the circumstances. The length of time for each step as well as the process in general will also depend greatly on your state and individual situation. The quickest divorces usually involve shorter marriages, no children from the marriage, few assets, and/or a settlement that doesn’t involve a trial. Your knowledgeable divorce attorney can help you to understand what the process will look like in your case.
The Divorce Summons and Petition
Did You Know?
In some states, if you initiate a separation and your spouse did not want it, you can be legally considered the one at “fault” in your divorce. Pay attention to state laws surrounding how and when you leave a marriage - it can affect the division of your property and the structure of any monetary settlements.
The divorce petition is typically the first legal paperwork filed in a divorce. The petition is a document that essentially asks the court to grant a legal separation or divorce. The summons is usually served simultaneously on the other party to notify them of the court action. At this point neither party should be making any major financial changes or disposing of marital assets.
The divorce petition will typically include information about residency, jurisdiction, and proposed relief. Relief can include alimony/spousal support, child support, proposed asset division, and custody. This is not necessarily the relief that will end up being granted, as often times the other spouse will answer the petition with a counter-petition of their own. If there are allegations about conduct or events during the marriage, the other party has the opportunity to agree or disagree with those allegations. As there is some form of “no-fault” divorce in all states, usually parties will cite “irreconcilable differences” or the equivalent applicable statutory language as the reason for the divorce.
Since the divorce process often takes such a long time, parties will often need to come to some sort of interim agreement about spousal support, custody and visitation of the children, and other matters that cannot wait until the divorce is finalized. The judge will have a hearing to decide what relief will be granted during the time period the divorce is pending, but before it is finalized. These are called pendente lite hearings.
Some courts will require that couples attempt mediation before they are allowed to move forward in court. Mediation involves an impartial trained mediator who helps the couple come to an agreement about things like child support, spousal support/alimony, custody and visitation, and asset and debt division. Mediators can save couples time and money, but it may not be appropriate in every circumstance.
If the parties have not come to an agreement regarding how the dissolution will proceed, then the next step is for both sides to gather evidence to prove their case in court. Evidence can come from a number of sources, including depositions, interrogatories, and document requests. Your divorce attorney will help you to understand what evidence is important and can assist you in gathering it. Throughout the divorce process make sure that you document relevant information and keep copies of any important paperwork.
The vast majority of divorce cases will settle before they get to trial. Cases can settle at any point in the process. Trial is expensive and arduous, and leaves the final decision in the hands of a judge who may make a decision that neither party is happy with. However, you may not be able to come to an agreement on your own without the judge stepping in. Your attorney can advise you on whether or not to accept a given settlement offer. Settlements should cover all of the contested matters. Once a settlement has been agreed upon, the agreement can be put in writing and incorporated into the divorce decree.
If you are not able to come to an agreement about the matters related to the divorce, then you could end up going to trial. At trial both your attorney and your spouse’s attorney will be able to put on evidence to show that your demands should be granted. If you have settled some of the issues, but not all of them, a judge can rule on just the issues that are still in contention. If you are unhappy with the outcome of the trial, you may be able to appeal. On appeal the court will look at potential errors made by the lower court, though it may affirm the lower court’s decision in full or in part.
No-Fault Divorce & Fault Divorce
No-Fault Divorce = Not one spouse is to blame for the breakdown of the marriage. Instead, you have what is sometimes referred to as “irreconcilable differences”.
Fault Divorce = One party lays blame on another as being “at fault” for the breakdown of the marriage.