Are you considering divorce and wondering what the process will be like? Your state's divorce laws will determine what steps you go through during the divorce process. Below is a broad outline describing the sequence of events for most divorce cases. Keep in mind that every divorce is different, so along with these steps, you will have issues come up that pertain to your individual divorce.
Legal Separation vs. Divorce
Legal separation is an arrangement by which a couple remain married but live apart, following a court order. Some states do not have laws that allow a couple to participate in a legal separation.
In those states, you are married until a court decides otherwise. If your state laws allow couples to separate legally when one or the other spouse leaves the family residence, your attorney will petition the courts for a separation agreement. This agreement protects the interests of both spouses and any children of the marriage by making sure that both parties meet their legal responsibilities to each other.
If your state doesn’t have laws that allow a legal separation, your next step would be to contact your attorney or file a petition with the courts yourself requesting a hearing so that a temporary separation agreement can be ordered. This is done by filing a petition for divorce in states with no legal separation laws on the books. Another resource to consider, on a state-by-state basis, are the legal foundations for civil annulment.
Divorce Process Steps
Original Petition for Divorce
To begin the divorce process, a document called “Original Petition for Divorce” is filed with your local court clerk. In some states, this is referred to as a “Letter of Complaint.” Both documents are requests that the court grant a divorce and list any relief the party filing for divorce feels they are due.
The original petition will identify the parties to the divorce and any children they may have. The party filing for divorce will have to state a reason as part of the petition or letter. In most states, this will be “irreconcilable differences” or “incompatibility.”
The person filing for the divorce will be named the “petitioner” by the courts while the other party to the divorce is referred to as the “respondent” or, in some states, the “defendant.”
The original petition or letter of complaint is then served on the respondent. Normally a member of the local sheriff's office serves the petition. Once the respondent has been served, they have 21 days to hire an attorney and respond to the original petition for divorce. It is at this time that either party may ask for restraining orders, protective orders, or temporary orders pertaining to child support and alimony.
Temporary Divorce Orders
The court can issue temporary orders that outline specific actions that must take place immediately and last until the final divorce hearing. Examples of things covered in temporary orders are child support, spousal support, and child custody. These orders are legally binding and not following them will mean finding yourself in contempt of court. If found in contempt, you can be jailed or fined according to the discretion of the judge.
Discovery is a legal mechanism designed for gathering information about either party to the divorce.
There are five steps to the discovery process. Although states and their laws may vary during the discovery process, the five steps below are common and will probably become a part of your divorce.
- Disclosures: Every state has rules of civil procedure and the way disclosure is conducted is determined by those rules. Attorneys for both parties request certain items from the other party. The list of items is sent to the other side and they must respond within thirty days.
- Interrogatories: This is a list of questions that the attorneys send to the opposing side. Most states set limits on how many questions and the response time is thirty days.
- Admissions of Fact: This is a written list of facts that is directed at the other party to the divorce. The party receiving the list of facts is asked to either admit to or deny each listed fact.
- Request for Production: This is a legal mechanism used to obtain documents such as bank statements, statements of income, or any documents the attorney feels will benefit his client. The party receiving a request for production is supposed to respond with the documents within thirty days. This part of the process can become a major obstacle to a swift divorce as people often don't want to turn over personal information and many times delay tactics are used at this part of the process.
During depositions, attorneys will take sworn testimony from the opposing party and any witnesses involved. Anything said during a deposition can be used in court should an agreement not be met and you end up in divorce court.
If you are lucky, this is as far as you will get in the process. During mediation, both parties to the divorce and their attorneys meet to discuss any conflicts they may have and try to come to an agreement that meets the needs of both. The mediator is a court-appointed attorney or arbitrator and is there to negotiate a settlement between the parties.
If mediation didn’t work and there are unresolved issues a trial date will be set. During the trial, both parties have the chance to argue their case before a judge. It’s imperative that you discuss, with your attorney, proper courtroom behavior so you can make a good impression on the judge. You may have a great case, witnesses lined up, and proof to back up any claims you have. Those mean nothing if you go into court looking like something the cat dragged in, or acting like a bully and know it all.
The judge will then examine all the evidence and make a decision based on what he feels would be a proper divorce settlement and outcome. Most judges hand down orders within 14 days of the court date. If you don't hear something within a couple of weeks, it's a good idea to contact your attorney and have them notify the court that you are still waiting for orders from the judge.
What Happens After Divorce
Once a judge has made a decision, the parties to the divorce will sign the final decree of divorce. The final decree states how any marital property will be divided, any orders pertaining to custody of the children, child support amounts, and any spousal maintenance that is ordered and any other issues pertinent to the dissolution of the marriage.
Read carefully the wording of the final decree before signing. If you wish to make any changes, now is the time to request that be done. If there are any mistakes in the way the decree is worded, you want to catch those before adding your signature.
If you feel that the court's orders are unfair, you may then file a motion to appeal the order and request a new hearing. This motion is filed with the same judge that put in place the orders and not many judges are going to set aside their own orders. You should not be surprised when the courts deny your motion. When the court denies your motion, you file an appeal with the state appellate court.
Marriages of short duration where there are no children or marital assets to split will see their way through the process rather quickly. If you have children and have accumulated assets during your marriage, you should not be surprised when the divorce seems to turn into a long, drawn-out, and at times frustrating process. Be patient because the Family Court system is hard at work trying to protect the interest of all parties involved in a divorce action.