You are likely here because you want a divorce, you’ve been told by your spouse a divorce is coming or you’ve been surprised by the service of divorce papers. Take a step back and consider what is at risk and what you’re going to do to protect your future. A divorce decree is a court order that determines how debts will be divided, how assets will be classified and split, when your children will spend time with you and how much support you will receive or pay. You need a divorce attorney who can guide you through this process. If you have an excellent divorce lawyer, he should start by listening to your desires and concerns and then put together a plan of action with you that will help reach a fair outcome. Your divorce lawyer will also educate you on the law in the divorce proceeding so you will understand the court’s decision-making process. Lastly, he will serve as your advocate in front of the court and with the opposing lawyer.
Getting Started
The divorce process starts with the filing of a complaint or petition for divorce. This document will contain biographical information about the parties, state the grounds making divorce appropriate and set forth the relief the party seeks from the court. A party served with a divorce complaint should promptly file an answer. If an answer is not timely filed, a default judgment can be entered by the court which can put the responding party at a big tactical disadvantage. The responding party should strongly consider filing a counter-claim for divorce and set forth his/her own demand for relief.
The marital estate will be divided in the divorce. Therefore, as soon as the complaint is filed, an injunction goes into effect. The injunction requires the parties to put a freeze on marital assets and forbids either party from incurring new, significant debt or getting rid of valuable assets before the court can rule on how they should be divided.
Motions for temporary relief may also be filed at the outset. Typically, these motions seek things like spousal support, child support, financial assistance for paying attorney’s fees and a temporary parenting plan. A good divorce attorney will first attempt to reach an agreement with the other lawyer on these issues so a ruling from the court will not be necessary. This will help the client keep legal expenses affordable and give both sides a workable plan while waiting for the final divorce decree.
A good divorce lawyer will tell you it is very important to get a complete and accurate picture of the marital debt and assets at the beginning of the divorce process and regularly update that picture. You will be expected to gather information on debt, income, bank accounts, retirement savings, investments, personal property and real estate. If there is suspicion your spouse has not been honest in sharing information on these matters, it may be necessary to serve written questions, requests for documents or use other litigation tools to get the information. No one should enter a divorce agreement or go to court with incomplete information about their spouse’s financial condition. Full disclosure is also necessary to draft accurate financial statements which are frequently required by the court.
Going to Court
The vast majority of divorces settle without the court having to resolve any disputes. In these cases, the parties present their agreement to the court for approval. The court must be satisfied the agreement complies with the law before it will be approved.
Even if the parties agree on all issues in a divorce, it is still wise to at least hire an affordable divorce lawyer who will help ensure the paperwork is done properly. This will reduce the chance of unsuccessful trips to court – caused by unfamiliarity with the law, procedural rules or a judge’s courtroom procedures – or the agreement quickly falling apart due to failing to anticipate issues, poorly drafted terms, etc.
If the parties cannot agree on all issues, the court will have to decide the disputed issues for them. Your divorce lawyer will probably tell you that a contested divorce is not going to be a cheap divorce. For your attorney to do a good job for you in a contested case, it will likely be necessary to do things like take depositions, interview witnesses, subpoena records and hire experts. Your legal expenses will also go up if the attorneys must go to court and get the judge to rule on matters.
In nearly all contested cases, the court will order the parties to go to mediation before they get their day in court. In a mediation, a neutral third party, who is oftentimes a divorce lawyer or former judge, will work with the two sides to see if an agreement can be reached on all or some of the contested issues. The mediator will then send a report to the court to let it know whether the mediation was successful.
If the parties still have unresolved issues at this point, the case will be set for trial. How quickly you can get a trial date will depend on several factors like the court’s calendar, the lawyers’ calendars, the availability of necessary witnesses, etc. The longer the anticipated length of the trial, the longer you can expect to wait for a trial date. You should also know that having a trial date does not guarantee your divorce will be done on that date. Trial dates can be continued for a variety of reasons and it is not unusual for a judge to take a case under advisement after it is heard. This means the judge intends to take more time evaluating the evidence before signing an order granting the divorce.
Appeals
It is possible to challenge a divorce decree with an appeal. The rules applied to cases on appeal can be even more unforgiving than those applied by the trial court which makes it essential to have an excellent divorce lawyer who knows the rules and can give you a realistic assessment of your chances of winning an appeal. You will also need a divorce attorney who can draft an effective appellate brief and argue your case persuasively before the appeals court. The appellate court will usually not address issues that were not properly raised in the trial court and addressed in the appellate brief. It is also unlikely to reverse the trial court unless the appealing party shows the trial court did not properly weigh the evidence or misinterpreted the law.