The Divorce Process
Once it appears that you and your spouse can't reconcile your differences and divorce is inevitable, or if you are on the receiving end of a divorce petition, you may well wonder what to do next. That is an excellent question. The divorce laws are extremely complex, they vary from state, and there are many options available to you.
This section is designed to give you an overview of what you can expect from the divorce process-from the moment that divorce first becomes an issue in your life to the final divorce decree and your life after divorce.
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Hire an experienced divorce attorney
Once you've decided that your marriage is beyond repair and that you want a divorce, or if you have been served with divorce papers and you don't really have a clue what to do next, the first thing you should do is hire an experienced divorce attorney. No matter how friendly your spouse may appear to be, it is extremely important for you to hire your own attorney to protect your rights. The divorce laws are complex; only an experienced divorce attorney can make sure that your rights (and the rights of your children) are fully protected.
Furthermore, make sure you hire an attorney experienced in divorce law-not someone who does divorce cases on occasion. Your family lawyer may be a good attorney, but he or she will most likely not be aware of all the nuances of divorce law.
Before you hire a lawyer, do your homework. Ask your friends and family members for attorney recommendations, and interview several attorneys before you make your final decision. But don't hire someone just because he or she has obtained big settlements in other cases or has a reputation for being a real pit bull. Although these things can be important, you'll also want an attorney with whom you feel comfortable, who understands your goals, and is willing to work closely with you to achieve them.
In your interviews, ask the attorneys detailed questions (remember, there's no such thing as a dumb question when your future is at stake), such as:
- What are your fees and costs?
- What is your experience in divorce law?
- Explain your philosophy-is it combative or cooperative?
- What can I expect to get out of my case (such as property, alimony, child support, and custody)?
- What will I have to pay my spouse?
- How can I protect my assets?
- Is the prenuptial agreement I signed enforceable?
- Are there alternatives to litigation?
- How can I protect my children?
Beware if your spouse suggests that you use his or her attorney. This is a serious red flag that your spouse is trying to take advantage of you. It is almost always unethical for a lawyer to represent both sides to a divorce, as the lawyer cannot adequately represent two individuals who have opposing interests. And make no mistake about it, in almost all divorce cases, you and your spouse will have opposing interests. Although you will have some common interests, such as the health and welfare of your children, in the end, you have to make sure that you fully protect your rights and get as much out of your divorce as possible.
At TotalDivorce.com, we make it extremely easy for you to hire an experienced divorce attorney. When you talk to one of our experienced divorce lawyers, you'll get answers to all of your questions, you'll get a good idea of what you can expect in your case, and you'll get an estimate of what your case will cost.
To get started, call us 1 (877) 349-1310.
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Meet with your divorce attorney
After you hire your divorce lawyer, he or she will meet with you to plan your strategy and prepare the necessary paperwork to start your case (or to respond to your spouse's previously filed case). Be prepared for a lot of tough questions from your attorney. Your attorney will need to know everything about your marriage, your assets, your spouse's assets, your expenses, your children, and everything else that touches on your case. You should also be prepared to bring to the meeting financial documents such as tax returns, bank statements, and other documents reflecting your assets, income, and expenses. Your attorney will tell you everything you need to bring with you
Your divorce attorney will prepare, file and serve your divorce papers
After your initial interview, your lawyer will begin preparing the paperwork necessary to begin your divorce case (or to respond to the case if your spouse has already filed). The document that begins a divorce case is known in most states as the "Petition." This document informs the court of your wish to end your marriage, and also sets forth all of the relief you are seeking, such as child support, custody arrangements, visitation rights, the division of your marital property, and the amount of alimony (in most states, alimony is now referred to as "maintenance").
If you are responding to a petition filed by your spouse, your attorney will file an "Answer"-admitting or denying the allegations contained in your spouse's petition and raising any applicable affirmative defenses. Your attorneys can also file a counterclaim if you have your own independent grounds for filing a divorce case.
Once the petition is prepared, your attorney will file it with the court and serve it on your spouse. If you file the petition, you will be known throughout the case as the "Petitioner." If you are served with a petition filed by your spouse, you will be referred to as the "Respondent." Typically, your attorney will be able to obtain service of the petition on your spouse within a few weeks. However, if your spouse is avoiding service, or has moved out of state, your attorney most likely will need extra time to serve the petition. In some cases, if your spouse cannot be located, your lawyer will publish a notice in your local newspaper over a period of a few months. If your spouse does not respond, the court will grant your divorce petition by default.
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Your case begins-and so does the waiting period
After the petition and answer are filed, your case begins. However, in many states, the law requires a certain period of time to elapse before the proceedings can continue. This "cooling off" period is intended to allow parties that can save their marriage to do so.
Temporary orders
During your case, the court will enter a series of temporary orders on a variety of issues in order to preserve the marital property, to make sure that your household bills are paid, to provide assistance to a spouse who has no source of income, and to provide for the needs of any children. These orders are applicable only while your case is pending and will dissolve upon the completion of your case. If your spouse is causing problems during the case, you can apply for a temporary restraining order to, for example, prohibit your spouse from contacting you or ordering your spouse to pay certain bills. In some cases, you will be entitled to an award of attorneys' fees if your spouse's misconduct requires your attorney to seek a temporary order.
Despite your right to go into court to seek temporary orders, it is always in everyone's best interest to agree upon disputed issues as much as possible while your case is pending rather than incur additional legal fees and add to bad feelings by having to go to court for temporary orders. In a few states, some temporary orders automatically go into effect when a divorce proceeding is filed or the other spouse is served.
Discovery
The heart of many divorce cases is "discovery"—the process in which the parties are permitted to obtain detailed information from each other about assets, income, fitness for custody, extramarital affairs, and all of the other issues relevant to your case. This is the phase of a divorce case you often see dramatized on TV—the bitter and tearful depositions, the private detectives digging up dirt on the spouse, and the grainy photos of one spouse in the arms of his or her lover.
Fortunately, this is largely fictionalized entertainment. In most cases, discovery is not contested, and the parties will exchange relevant information as required by the rules of procedure. If your spouse resists turning over relevant information, your attorney can seek an order from the court compelling your spouse to do so, and ordering that he or she pay your attorneys' fees.
Settlement
In most cases, the court will push the parties to work toward a negotiated settlement of the case rather than a trial (one sign of a good divorce lawyer is that he or she will encourage you to think about the possibility of settlement). Excessive litigation only antagonizes the parties, harms the children, and drives up the costs for everyone. Of course, the final decision of whether or not to settle is always up to you—not your attorney.
In fact, this policy in favor of settlement is so strongly held that many states make provisions for a kind of "divorce by agreement." For example, in Illinois the law provides that the parties may enter into an agreement that resolves the distribution of property, alimony, child support, custody and visitation. If the parties can agree, the agreement is binding on the court (except for provisions regarding child support, visitation, and custody, which the court can decide on its own), and the court will then enter a final decree including all of the agreed upon terms. For couples that can get along well enough to hammer out an agreement, this approach can dramatically speed up the divorce process, minimize the stress on the children, and save costs for everyone.
Trial
If you and your spouse cannot reach a settlement, the court will schedule a trial of your case. You and your spouse will each be able to tell your own stories, call witnesses (including experts) to support your case, and cross examine the other side's witnesses. Divorce cases typically are not tried before juries; the judge has the final decision. After the trial, the judge will then enter a final divorce decree resolving all of the issues in the case- the distribution of property, alimony, child support, custody, visitation, and attorneys' fees.
But, your trial is not always the end of your case. The losing party can appeal the decree, thereby extending your case for at least another year and adding to the expense and bad feelings for everyone involved-yet another reason why settlement is typically in everyone's interest. There are, however, alternatives to trial.
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Alternatives to Trial
Alternative dispute resolution (ADR) has become very popular in recent years as the delay and expense associated with trial has encouraged lawyers and litigants to seek alternatives. Generally speaking, ADR is a non-trial procedure in which the parties engage the services of a neutral third party to help them resolve their case without litigation.
There are a number of advantages to ADR. It is typically much less costly than litigation, most cases can be resolved reasonably quickly, and it is usually far less hostile and adversarial than litigation, thus eliminating the stress and hardship on all of the parties involved. Furthermore, ADR is private: your case is not a matter of public record and is not accessible to the prying eyes of strangers. As a result of these many benefits, ADR is becoming extremely popular in divorce law, and is well worth considering if you have a decent level of trust with your spouse. The two main ADR techniques are divorce mediation and arbitration.
Divorce Mediation
Divorce mediation is probably the most popular ADR technique used in divorce law. In mediation, you and your spouse work together to reach a settlement with the assistance of a neutral third party (the mediator). Unlike a judge, the mediator does not issue a binding judgment; rather, he or she tries to facilitate a fair settlement between the parties to prevent the expense and heartbreak of divorce litigation. Mediation is completely voluntary and you can stop the process at any time.
The theory behind mediation is that a well-trained, experienced divorce mediator will give each side a candid evaluation of their case early in the process, thus giving each side a realistic appraisal of their chance of winning or losing at trial. Armed with this information, the thinking goes, the parties will be much more likely to settle their case. If the parties cannot reach a settlement, the mediation is concluded and the case will go back to court, but everything said and done during the mediation proceedings is kept completely confidential and is inadmissible at trial.
Mediation does not mean that there are no lawyers are involved. In fact, you should have an experienced divorce lawyer representing you at your mediation. Although the process is non-binding, it is similar to a typical court case, with each side presenting arguments and evidence in support of their case, and your lawyer will continually be trying to convince the mediator of the strength of your case. An experienced divorce lawyer representing you in mediation will help you maximize your recovery and your protection.
Of course, mediation is not for everyone. For a mediation to be successful, both parties must truly want to settle the case. Although a skillful mediator can work to lessen the tensions between the parties, if the parties are deeply hostile and mistrustful of one another, mediation will most likely be a waste of time. In an increasing number of states, the courts are very supportive of mediation and other trial alternatives, and they will refer cases to mediation and other forms of voluntary conciliation if they believe that a divorce case can be resolved without trial.
Divorce Arbitration
Divorce arbitration is a kind of mini-trial in which the parties agree on a neutral third party (the arbitrator) instead of a judge to make a decision for them in their case. There are several advantages to arbitration. Arbitrations are typically handled on an expedited basis, with less discovery and other court procedures than standard litigation, thus saving everyone time and money in the resolution of the matter. Also, because the parties get to choose their own arbitrator, they get a very strong sense of having their day in court when they use an arbitrator whom they know and respect. Also, arbitration awards are typically final and very difficult to appeal, although there are a few, limited grounds for challenging an arbitration award.
However, like mediation, the parties have to have a sufficient level of trust to agree upon an arbitrator and to limit the amount of discovery available to them. In most cases, if the parties aren't cooperative enough to conduct a mediation, they will probably prefer a full-blown trial rather than an abbreviated arbitration hearing. Also, some states may limit the reach of arbitration awards, as the courts have the right to have the final say in important decisions like child support, custody, and visitation.
Collaborative Divorce
In a collaborative divorce, the parties work with their attorneys to resolve all of their divorce related issues—property division, alimony, child support, custody, and visitation—in a cooperative atmosphere. Typically, a collaborative process begins with the parties' entry into a written "contract" in which they agree to fully disclose all relevant facts (such as financial information) and to use their good faith and best efforts to resolve their dispute without court intervention. Often, the agreement will provide that if either spouse decides to terminate the process in favor of traditional divorce litigation, then both collaborative attorneys will resign from their representation and the parties will retain new counsel.
Collaborative divorce differs from arbitration and mediation because there is no mediator or arbitrator involved—only the parties and their attorneys are involved. The attorneys participate in the collaborative process as representatives of their respective clients, but they also act to support and encourage an agreeable solution for all parties and families involved. As negotiations progress and the parties find it necessary to do so, they may agree to hire experts to assist with accounting matters, asset valuation, or other technical issues that might arise during discussion of support obligations and property division.
Collaborative divorce has a number of benefits. First of all, you will save the cost of hiring an arbitrator or mediator to handle your case. Also, it will typically be less contentious, as the parties will not be arguing their cases or putting on evidence, as they do in arbitration or mediation. Of course, if the collaborative process does not work out, then the expense will increase as the parties will have to resort to standard litigation. Additionally, the collaborative divorce process typically requires an extremely high level of trust and cooperation between the parties. If this does not seem likely in your situation, a collaborative divorce or other form of ADR is probably not the best answer for you.
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Dealing With Children During Your Divorce
If you have children, the divorce process can be traumatic for them. As a responsible parent, you need to do everything you can to help your children handle your divorce, and as much as possible, make sure that your spouse does so as well. Fortunately, there are a number of ways that you can minimize the negative impacts of divorce on your children.
Don't badmouth your spouse. Yes, we understand that you're probably extremely angry at your spouse. But in most cases, your children are not. It's hard enough for children to handle divorce, but when they start to hear how evil their parents are, the effects can be devastating. If you really want to fight your spouse, do so, but don't get your children involved.
Get counseling. Many children of divorcing parents feel that they are somehow responsible for the divorce, which can generate tremendous feelings of guilt and depression. Don't let this happen to your children. There are many mental health professionals who specialize in helping kids through the divorce process; if you can afford it, hire a therapist or other health care professional experienced in this process. You and your spouse should also consider counseling; it cannot only help you with your own emotional issues, but it can also help you to help your kids.
Try to cooperate with your spouse. If at all possible, try to cooperate with your spouse so your children don't have to experience the pain of a lengthy and bitter divorce battle. Even if you think you can hide your fighting, most children can feel the tension and anger. If you can work out the divorce amicably, your children will be much happier, and their emotional scars will heal much more quickly. Also, don't hinder your spouse from seeing your children (unless of course, your spouse is an unfit parent, in which case, you will need to consult with your attorney to obtain the appropriate protective order from the court).
Always put your children's welfare first. The legal standard the court will follow in dealing with your children is the "best interests of the child." You should follow the same rule. Remember, no matter how much you may be hurting, you are an adult, and eventually you will begin to heal from the pain of your divorce. But it is much more difficult for your children to recover.
Keep your children out of the process as much as possible. In most cases, your kids will not want to have any involvement in your divorce; they will want to keep their lives as normal as possible. Accordingly, keep them out of the process as much as you possibly can. Don't fill them in on the details, don't bring them to your lawyer's office or to court (unless you're ordered to do so), and don't introduce them to your new love interest right away. Of course, this doesn't mean that you should refuse to answer their questions if they ask; if they express an interest in what's going on, try to give them the essential details without blaming your spouse, and constantly reassure them that the dispute is only between "mommy and daddy," and that they are not involved.
If you have concerns about your spouse's treatment of your children, get a temporary restraining order (TRO). A TRO is a court order that prevents either party to a divorce from taking any actions that would upset the status quo or violate the law-such as taking your children out of state. If you are concerned about any misconduct by your spouse with respect to your children, you can ask the court to issue a TRO that will, for example, prohibit your children from being taken out of the state.
If any domestic violence occurs, call the police. Don't allow your spouse to commit any domestic violence against you or your children. If it does occur, call the police immediately and file a police report. Also, call your attorney as soon as possible.