Getting ready to divorce? It may help to have an inside look into the divorce process. This blog will walk through the legal steps of the process known as litigation. The process can vary in different situations.
Papers are Drafted and Served
The first step is for the party initiating the divorce to file a petition asking the court to grant them a divorce. In addition, the petition includes that party’s requests for particular outcomes in the divorce that they believe they have a legal right to. This generally includes the division of marital property and custody of minor children. This is done by the spouse initiating the divorce with or without an attorney. The spouse filing the initial petition for divorce is known as the petitioner. Those who prepare their own petition can draft the papers using your state’s online service, or you can use a program like SimpleEnding. Traditionally, we do not recommend that people use their state’s website to draft the terms of their divorce. This is because the state’s divorce forms allow you to write whatever provisions you wish, even if they aren’t enforceable, or would not hold up in court. Most people also are unable to consider all of the potential consequences of provisions they decide to include. Unfortunately, the court doesn’t grant modifications when someone says, “it seemed like a good idea at the time.”
The Respondent Responds
Once the petition is filed it’s served on the responding spouse, known as the respondent. It can be overwhelming to be served with a petition for divorce, especially when you see everything your spouse has asked you for. However, if you’ve been served with a petition for divorce, it’s important to understand that your spouse is giving you a wishlist of everything they’d ever want for the court to order. You have the right to dispute it, make your own requests to the court, and compromise to come to an agreement with your spouse. The respondent must respond within a specified time. Failure to do so may result in a default judgment. A default judgment means that the court will grant the petitioner what they’ve requested because you electively failed to respond or participate, even if it isn’t necessarily reasonable. At this point, you may decide to hire an attorney to help you to respond to the petition. Hiring an attorney can ensure that you don’t agree to terms that aren’t in your best interests, and that you fight for the best outcome available. An attorney can help you understand your rights, and help you maintain reasonable expectations for the outcome of your divorce.
Once both parties have answered the opposing party’s petition both parties are required to provide what the court calls initial disclosures. This means that both parties have to provide certain information to the other. This includes a list and contact information for anything that they think has information relevant to the issues in the divorce. They also include providing certain financial information on a financial declaration. This financial disclosure also requires disclosure of pay stubs, tax returns, bank statements, and other forms of documentation regarding the information in the financial declaration. If it’s necessary, once the initial disclosures have been completed, the parties are able to make requests for the other party to answer questions and provide other documentation or evidence in their possession. They may also ask to depose the other party or issue subpoenas to third parties to obtain information and/or evidence.
After the divorce is initiated the court often issues a standing order to give parties general ground rules. This prevents either party from behaving in a way that would adversely affect the other party or litigation. This includes making any significant changes to the marital property. These general orders may not be enough if the two parties are unable to agree on how to interact with one another during the divorce process. This is particularly true where the parties have children or there is one primary breadwinner with a significant pay gap between the parties. In that case, the parties may ask the court to issue temporary orders. This means that the court will create orders regarding temporary possession of property, legal and physical custody of children, and any child support or alimony that is necessary during the divorce process.
Coming to an Agreement
At any point of the divorce process the parties are able to discuss issues in the divorce and start negotiating. Some couples are able to do this without any help. In other situations, the couples may need attorneys and/or mediators to help them reach an agreement. In many cases the court will require the parties to mediate with a mediator before they can have a trial. It is also possible that you and your spouse could agree on most of the issues and only need to have a trial on a few issues that you can’t agree on. Technically, you could agree to all of the terms and conditions of divorce and have a signed stipulation prior to filing a petition. However, if your state has a waiting period, you may also need to wait for the mandatory waiting period of each state before you’re officially divorced. The reason most divorces take longer has to do with the fact that both parties have a difficult time agreeing on the terms of the divorce.
What About the Lawyers?
As previously mentioned, most of the costs associated with a lawyer come from the fact that the parties cannot agree. Lawyers will advocate for your rights and negotiate more favorable terms on your behalf. The more you and your spouse can agree on, the less time lawyers will have to spend litigating your case and negotiating terms. Not all divorces need to have attorneys. However, it’s a good idea to have a person advocating for your best interests. Mediators don’t advocate for your best interests, and the state’s website actually allows couples to write terms that are detrimental. If you agree on most things, and you do not need an attorney, it may be a good idea to use a program like SimpleEnding to ensure that your divorce decree will protect your rights, and hold up in court.
Not every divorce needs to go to court to have a judge make a decision. In fact, many couples are able to get out of the divorce process without ever setting foot in court. Even if lawyers are involved, you may be able to avoid going to court. Lawyers are hired to advocate for their client’s rights. If your lawyer and your spouse’s lawyer are able to negotiate fair terms without going to court, you may be able to save a little bit of money. Many lawyers advise their clients to be willing to negotiate on the terms of the divorce, opting to fight for only the issues that really matter. The only time couples end up in court is when they cannot come to an agreement by themselves. This is generally encouraged by the court as they view an agreement between the parties to be better than a court mandated order. Ultimately, the parties are better able to come up with solutions than a judge with a limited scope and no personal knowledge of their lives and circumstances.
Finalizing the Divorce
In most states divorces aren’t instantly finalized. Most states require a “cooling-off” period of time to ensure that the divorce should be finalized. Each state has its own waiting period, and many range from thirty to ninety days. In order to be “officially divorced” you will have to make it through the mandatory waiting period. In rare circumstances, the waiting period may be waived. If you believe you need to waive your waiting period, you may need to ask your attorney about this. This waiting period is a good time to ensure all of the other court requirements have been completed such as taking a divorce education class or obtaining the necessary documentation, such as pay stubs or tax returns to verify the parties’ incomes.
When You’re Filing for Divorce
If you’re considering filing for divorce, contact CoilLaw today to get started on your initial consultation. Knowing your rights and understanding your options is often a crucial part of obtaining the best outcome possible. Don’t wait to get the representation you deserve. Contact CoilLaw today.